A unanimous appellate court ruled today that the Town of Greenburgh was not legally permitted to change its zoning map to correct a drafting mistake by Greenburgh officials years ago that erroneously included a two-acre residential parcel off Dromore Road near the Greenburgh Nature Center in the Town’s Central Avenue multi-use district, where multifamily housing is permitted.
The court ruled that the Town was barred from correcting the error in its map, even with proper notice and a hearing, because of a January 2012 ruling – later affirmed on appeal — that the Town had acted in bad faith when it corrected the map improperly in the spring of 2007, when it did so without such notice and a hearing.
The bad faith was supposedly the result of community pressure from Edgemont residents which the Town never presented evidence to refute. At least one third of Edgemont’s housing stock already consists of multifamily housing.
Town Supervisor Paul Feiner had sided years ago with the developer, posting emails from the developer on the Town’s email list in favor of the project. He also gave sworn deposition testimony in the original court proceeding that the developer relied on extensively to prove its bad faith case (click here to read testimony).
Edgemont residents were never party to the original court proceedings and no Edgemont residents were ever deposed. As a result, the smears made against the Edgemont community were never answered by the Town or otherwise answered in any forum.
The ruling today was therefore no surprise. At oral argument last month on September 9, S&R’s lawyer argued repeatedly that the Town’s actions were motivated by a desire to protect the Edgemont School District from having to enroll low income schoolchildren who would live in the “affordable” housing that S&R planned to build – a charge attorneys for the Town never refuted.
S&R originally planned to build luxury townhouses at the site, but later changed its mind, ostensibly for public relations purposes, and claimed it was building “affordable housing” instead.
So persuaded was the court that the Town had acted improperly that one of the judges at last month’s oral argument even doubted that the Town had legitimate concerns about Dromore Road being too narrow and winding a road to support a multifamily housing project – essentially agreeing with S&R that the real reason was resistance to affordable multifamily housing generally.
As a result of today’s ruling, the owner of the two-acre parcel, S&R Development Estates, will now be permitted to get site plan approval from the Town’s Planning Board to construct its 45-unit multifamily apartment complex.
If allowed to succeed, S&R will get a huge financial windfall because S&R obtained appraisals in 2006 showing it acquired the property for about a tenth of what the property would be worth if it were zoned for multifamily housing.
However, S&R still has another major hurdle to overcome before it may proceed with its project.
The owners of an adjacent parcel on Dromore Road – Edgemont’s Sacramentine Nuns, known as the Sisters of the Blessed Sacrament – have asserted their right to enforce a 100-year old restrictive covenant on S&R site, which bars construction of “tenements or flat houses so-called.” The nuns contend the covenant bars the construction of apartment houses.
The covenant was written in 1912 – just a few weeks after the New York State Legislature amended the Tenement Law to define the word “tenement” as including “apartment houses.”
S&R, which has always known about the covenant, had brought suit against the nuns two years ago in an effort to declare the covenant unenforceable, but the suit was dismissed as premature on the ground that the state’s appellate court was considering whether the property is zoned for single family homes.
Because the Town today lost that appeal, S&R will now seek a ruling from the appellate court to reinstate its case against the nuns and possibly get a ruling from the same court that the covenant is not enforceable.
As of now though, the restrictive covenant, which the developer sought to extinguish, remains in full force and effect.
The Dromore property has been the subject of numerous legal battles between the Town and Harrison-based developer S&R. The property had originally been zoned for single family houses, but because of a draftman’s mistake in the Town’s zoning map dating back to 1997, the property had been mislabeled as being in the Central Avenue Mixed Use Zone, which allows construction of apartment houses.
Under the Town’s Zoning Code in effect at the time, responsibility for making sure the Town’s zoning map was correct rested with Mr. Feiner, who was supposed to affix his signature every year on the Town’s official zoning map. Mr. Feiner never bothered to do so, leading to the discovery years later of more than 50 such zoning errors on the Town’s map, one of which was this one.
In January 2012, a state supreme court judge ruled that the Town had acted in bad faith when it changed the map in 2007 without notice and a hearing to fix the mistake on Dromore Road. The developer claimed that the bad faith was the result of the Town’s allegedly bowing to community pressure from Edgemont residents who were opposed to multifamily housing in Edgemont – and the court agreed.
But the court did not bar the Town from correcting the map properly; nor did the court order that, as a result of the Town’s having acted in bad faith, it had to approve S&R’s development proposal.
As a result, the Town corrected the map in September 2012, but a state supreme court judge ruled in August 2013 that the corrections to the map were not enforceable as against S&R because of purported “bad faith” on the part of the Town.
Today’s appellate court ruling affirmed that August 2013 ruling.
Edgemont’s nuns are being represented in the case pro bono by Bob Bernstein, with the Edgemont Community Council picking up the out-of-pocket costs.