The Edgemont Community Council this week appealed a decision by Greenburgh’s building inspector that no variance from the zoning board is needed for a four-story 85-bed assisted living facility proposed for a residential neighborhood at the site of the Sprainbrook Nursery on Underhill Road in Edgemont, even though the site is a mile from the nearest state or county road.

Joining the ECC in the appeal were the Council of Greenburgh Civic Associations, as well as the owners of ten homes who live near the property on Deer Hill Lane and Sprain Road.

The appeal will be heard at an upcoming meeting of the Zoning Board of Appeals. Under ZBA rules, civic associations filing appeals from decisions of the building inspector are never to be charged any fees. However, Greenburgh refuses to comply with the ZBA’s rules, and town officials this week would not allow the appeal to be filed unless the ECC paid a fee of $500 of which $100 was described as a “legal fee” for the town attorney. The $500 was then paid “under protest.”

The ECC and CGCA said they intended to lodge a protest with the town board for requiring the payment of such fees at the next town board meeting, which will be held this Wednesday, August 19. Ella Preiser, the secretary of the CGCA, said the Town’s requiring civic associations to pay such fees, when the ZBA rules expressly state no fees are to be paid, was intended to “disenfranchise” civic groups that are often in the best position to know when a decision from the building inspector is wrong.

Greenburgh amended its zoning ordinance two years ago to allow up to 100-bed assisted living facilities to be built in residential neighborhoods in unincorporated Greenburgh as long as the site is at least four acres in size and further provided that, to minimize noise in such neighborhoods and to allow for easy access to emergency medical vehicles, the site is also within 200 feet of “access to a state or county right of way,” not including parkways or interstate highways.

The building inspector ruled last month that Shelbourne Assisted Living LLC, which is seeking to build an assisted living facility at the Sprainbrook site, does not need a variance because records from the 1960s show that the New York State Department of Transportation had obtained a right-of-way on a portion of the site’s property in connection with construction of the Sprain Brook Parkway.

The right-of-way was then used to store road equipment and supplies for the highway’s construction, which was completed more than 45 years ago.   The right-of-way hasn’t been used since.

The building inspector nevertheless concluded that because records show that the state acquired a right-of-way on the property, it qualified as a “state right-of-way” within the meaning of the Town’s zoning ordinance for assisted living facilities.

The ECC appeal, which was drafted by ECC president Bob Bernstein, a lawyer, pointed out that while “access to a state right of way” could mean access by the state to use private property, otherwise known as an easement, it has only one meaning in this context which is “access to a state road” or a “road” right-of-way, because the words that immediately follow in the same sentence exclude “parkways and interstate highways,” which are both types of roads, and because the next sentence in the ordinance requires that “such access” be direct, “via a side street” and “not circuitous,” words which would have no meaning if the phrase “state right-of-way” referred instead to the state’s right to use someone’s private property.

The appeal also pointed out that the Town Board’s legislative findings, which were filed with the state prior to adopting the zoning change to allow assisted living facilities in residential neighborhoods, explained that the reason for the 200 foot requirement was the need to minimize impacts on residential streets and to allow for ease of access by emergency medical vehicles that are likely to need to be able to reach residents of an assisted living facility. Neither purpose would be served by the building inspector’s decision.

Mr. Bernstein also pointed out that the applicant never produced to the buiding inspector legible copies of documents showing whether the state’s acquisition of the property was pursuant to a temporary easement, a permanent easement, or a deed giving the state all right, title and interest to the property. He also noted that neighboring town roads, such as Underhill, Sprain and Ridge Roads, were all recorded as having been acquired by the state at around the same time as part of the same “right-of-way” acquisition for the Sprain Brook Parkway construction project, and that no one today contends that Underhill, Sprain or Ridge Roads are, as a result, owned by the state.  “To the contrary,” Mr. Bernstein stated, “These are all town roads and have never been otherwise.”

Mr. Bernstein also said that if the records showed the property was acquired for a temporary easement, the easement would have long since expired, and if it was a permanent easement, the fact that the property is no longer used by the state, and hasn’t been used for more than six years, means the easement would have been legally “abandoned” under state highway law.

Finally, Mr. Bernstein said that if the property was actually “sold” to the state, which acquired not just a “right-of-way” but actually “all right, title and interest” to the property, then such property could not legally be considered part of the four acre minimum needed by Shelbourne to construct an assisted living facility on the site in the first place.

Even though no legible property transfer records were produced, and no one from the state represented what type of acquisition actually took place back in the 1960s, the building inspector assumed that all right, title and interest in the property had been legally transferred to the state and that, even though that meant the four-acre minimum lot size was not met, the applicant could seek a special permit from the town board to waive that requirement.

However, in order to obtain such a special permit, the applicant would have to show that the Town Board in the 1960s asked the owner of the land to “consent” to its transfer to the state and that the owner waived all right to receive compensation from the state for its having taken the land. Here, however, no such information was furnished to the building inspector to show that the applicant would even qualify for such a special permit. Accordingly, for that additional reason, the ECC, CGCA and area residents said a second variance was required.

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