The Edgemont Community Council this week told the Zoning Board of Appeals that if the building inspector’s ruling that no variances are needed to build an assisted living facility in Edgemont nearly a mile from the nearest state or county road is upheld, it would effectively repeal a provision in the Town’s assisted living statute that would potentially place thousands of homeowners at risk of an assisted living facility being constructed in neighborhoods in which they were never supposed to be built.

The Town’s assisted living ordinance, passed only two years ago, provides that the site for such facilities must be within 200 feet of a state or county “right of way” excluding “parkways and interstate highways.”

The exclusion of “parkways and interstate highways” shows that the “right of way” at issue here could only mean state or county land alongside an existing state or county road, since parkways and interstate highways are types of roads.

But the reference to “excluding” parkways and interstate highways is just as important.

Here, the town board was trying to limit residential areas where assisted living facilities could be built by preventing such facilities from being located within 200 feet of either Interstate 287 or the Bronx River Parkway, the Sprain Brook Parkway and the Saw Mill Parkway. There are many residential neighborhoods in unincorporated Greenburgh located near the parkways.

The town board explained in its filings with the state that in not allowing such facilities to be located within 200 feet of a state parkway or interstate highway, it was trying to limit the potential noise and traffic that could be generated in those neighborhoods.

And the reason for requiring that assisted living sites be within 200 feet of a state or county “right of way” – excluding parkways and interstates — was to ensure that emergency vehicles would have no difficulty reaching facilities where the residents there are more likely to need such services.

The language of the provision was originally written in 2012 to say the site must be within 200 feet of a state or county “road” – but the wording was changed at the last minute from “road” to “right of way” because the developer for whom the ordinance was being written could not meet the 200-foot requirement if it were limited to state or county “roads.”

But the applicant could meet the standard if its site, which was to be built along Tarrytown Road, a state road near the Tarrytown border, was instead within 200 feet of the road’s “right of way.”

The “right-of-way” is the portion of roadway along the side of the roadbed which governments retain in the event of a need for highway expansion or, in some cases, to build sidewalks, install drains, or locate utilities. Greenburgh has frequently had to pay fees to the state when it needs to access the state rights-of-way along state roads.

Formation Shelbourne, a developer seeking to build an 80-bed assisted living facility in a residential neighborhood at the site of the Sprainbrook Nursery at Underhill and Sprain Roads in Edgemont, is relying on the change from “road” to “right of way” to argue that, even though its site is nearly a mile away from the nearest state or county road, the State of New York acquired a “right of way” on a small portion of the site in the 1960s as part of the work associated with the construction of the Sprain Brook Parkway.

However, the “state right of way” at the Sprainbrook site that Shelbourne is relying on is just a parcel of land, adjacent to Underhill Road – a town road – that leads nowhere.

To the Town’s building inspector – and to town officials who are very eager to see the project built — the existence of a “state right of way” — even if it is not part of any state or county road and, in fact, leads absolutely nowhere – is all that’s needed in Greenburgh to come within the Town’s assisted living ordinance.

At the zoning board hearing Thursday night, ECC president Bob Bernstein argued that the building inspector’s interpretation made no sense and was unlawful.

The reason it made no sense is that if any parcel of state-owned property that happened to be designated a “state right of way” could satisfy the Town’s requirement, then the Town’s prohibition in its zoning code against having assisted living facilities located within 200 feet of “state parkways” would have fail because there is a “state right of way’ along every state parkway in New York.

The reason it would be unlawful is that state courts in New York say zoning ordinances “must be construed as a whole and that its various sections must be considered together and with reference to each other, “ Mr. Bernstein said. “Furthermore, meaning must be given to each and every word of a statute whenever possible.”

Mr. Bernstein said he hoped the Zoning Board of Appeals would follow the rule of law here and reject the argument that all that matters here is that Shelbourne can point to a “state right of way” – even if it is just a spit of land that leads nowhere.

At the hearing Thursday night, Shelbourne also produced for the first time a map and legible description of one of two parcels of property at the site that were acquired by the State Department of Transportation in the 1960s.

Previously, even though the applicant had legible copies in its possession since at least February 2015, it apparently chose for strategic reasons to supply the Town, the Building Inspector and the Zoning Board of Appeals only with illegible copies.

The legible copy shows that the property was acquired by the state “in fee” by eminent domain which means that, even though it is no longer needed for the construction of the Sprain Parkway, which was completed in the late 1960s, the State of New York still owns the property today.

That is significant because it means that the Sprainbrook site is less than four acres. Under the Town’s assisted living statute, such facilities must be located on sites that are at least four acres or more in size.

The applicant nevertheless persuaded the Building Inspector that a variance was still not needed, even though the minimum land requirement was not satisfied, on the ground that the applicant could apply for a “special permit” to get around the minimum acreage requirement.

However, to qualify for a special permit in these circumstances, the applicant would have to show that the town board asked the Krautter family to consent to the state taking its land in the 1960s for purpose of a “highway expansion” and that the Krautter family in turned waived all rights to compensation from the state for the taking.

However, the documents produced Thursday night make reference to state law indicating that the taking of the  property was pursuant to the state’s power of eminent domain for which state and federal law require that the property owner must receive “just compensation.”

Because the applicant has produced no document in which the Krautter family waived any such compensation, much less any evidence that the Town Board ever asked the Krautters to donate the land, there does not appear to be any evidentiary basis whatsoever for the building inspector to conclude that the applicant could even ask for a special permit to be exempt from the four-acre requirement.

Yet that’s exactly what he did, which is not surprising, given how desperate it appears town officials are to approve this project, no matter how unlawful doing so may appear to be.

Indeed, at the conclusion of the hearing on Thursday, one zoning board member said he was satisfied that the building inspector was right all along to conclude no variances were required.   That zoning board member, a recent appointee of Town Supervisor Paul Feiner, and the host of the last major political fundraiser for Mr. Feiner where he collected tens of thousands of dollars in contributions from developers with applications pending before the town, claimed he had “done his homework” and, even though there is no evidence to show it, he “knew” no compensation had been paid for the property.

Mr. Feiner is widely known to have lobbied residents to approve the project, although he denies it and claims to be “neutral.”   He did however, use the town’s email list several times to promote the project as promising hundreds of thousands of dollars per year in tax ratables to the Edgemont School District.

Ironically, at last Wednesday’s Town Board meeting, Mr. Feiner voted to approve a tax certiorari settlement for the Atria, an assisted living facility on Route 9A in Ardsley, which called for the return of hundreds of thousands of dollars in tax refunds.

When Shelbourne initially filed its application for Town approval, it applied for variances to be excused from both the 200-foot requirement as well as the requirement that the site be on a minimum of four acres.

The ECC then wrote to the Zoning Board of Appeals to suggest that the variances required were “use “ variances because the nature of the restrictions in the Town’s assisted living ordinance were such that the Town was making clear that assisted living facilities were not an accepted use in areas that did not meet the statutory criteria.

Immediately after the ECC filed its letter, Shelbourne announced that it was withdrawing its application for variances and, soon thereafter, received an interpretation from the Building Inspector that no variances were needed.

The ECC then joined with the Council of Greenburgh Civic Associations and more than a dozen area residents whose properties abut the Sprainbrook Nursery property in appealing that decision.

The Town then refused to allow the appeal to be filed unless it received a $500 fee, which was paid.

However, under town rules in effect since the early 1980s, civic associations that seek to appeal interpretations of the building code by the building inspector are not to be charged any fees.

Town officials promised several months ago to return the $500 fee, but the town attorney appears to be opposed to returning the money and they have yet to take any action to do so.

The chair of the zoning board adjourned the hearing until the zoning board’s next meeting in mid-November.

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