For the second time in two months, Edgemont Community Council president Bob Bernstein squared off against a lawyer for Shelbourne LLC, the developer that wants to build an 80-bed assisted living facility on the site of the Sprainbrook Nursery at the corner of Underhill and Sprain Roads in Edgemont.

The ECC, along with the Council of Greenburgh Civic Associations and 17 residents who live on Deer Hill Lane alongside the Sprainbrook site, are challenging Greenburgh building inspector John Lucido’s ruling this summer that Shelbourne can build its facility without having to seek any variances from the Town’s zoning code.

The matter was argued before the Zoning Board this past Thursday, November 19; a video of the meeting has been posted on the Town’s website.

The ZBA rejected the applicant’s request that it close the hearing and said it would resume hearing argument on the matter at its meeting next month.

Under the Town’s zoning code, adopted in January 2013, in order to ensure emergency vehicles can get there safely in time and to minimize noise and traffic in the Town’s residential neighborhoods, no assisted living facilities may be constructed in any residential neighborhood in unincorporated Greenburgh unless the site is at least 4 acres in size and within 200 feet of state or county “right-of-way” excluding interstate highways and parkways.

The Sprainbook Nursery site is only 3.79 acres in size and about a mile from the nearest state or county road, which is Central Avenue. Both Underhill and Sprain Roads are “town” roads.

Requiring a variance means that the applicant would have to persuade the Zoning Board that, in granting an exception from the Zoning Code for its project, the zoning code’s purpose and intent in promoting public safety and minimizing noise and disruption to residential neighborhoods would still be upheld.

It is widely believed among civic leaders and residents that elected town leaders, starting with Town Supervisor Paul Feiner, support the construction of Shelbourne’s proposed assisted living facility at the Sprainbrook site and have instructed town officials to bend the rules wherever possible to allow the proposal to be approved, even if it means ignoring the zoning code’s requirements.

Mr. Feiner denies he’s doing this, however, and insists he and his colleagues still have an open mind.

Nevertheless, in accordance with the widely held belief that he supports the project, Mr. Feiner has used the Town’s email list to tout the supposed tax benefits that the Shelbourne project might bring, and the Town’s planning board last month unanimously recommended that the Town Board grant a special permit to allow the facility to be constructed after the Town’s planning commissioner prepared an opinion for the planning board, that no planning board member challenged, stating that all town zoning requirements were satisfied because the land that the developer would need to satisfy the four-acre minimum had been “donated” to the state at the town board’s request.

In fact, there is no evidence that the town board had ever made such a request or that the property was ever donated. Consistent with its practices in such matters, the planning board adopted its recommendation without giving the public any opportunity to point out that no such evidence existed.

Ella Preiser, secretary of the Council of Greenburgh Civic Associations, has notified the Town Board in writing that it should not accept the planning board’s recommendation for that reason. Consistent with their practice, no member of the Town Board responded to Ms. Preiser’s letter, either orally or in writing.

A further indication of the Town’s support for the Shelbourne project – and its hostility to efforts on the part of civic groups to insist on its being required to comply with the zoning code – is the Town Board’s refusal for the past three months to refund the $500 fee that the Town insisted the ECC had to pay in order to proceed with the appeal of the building inspector’s determination in the first place.

Under the Town’s rules — posted on the Town’s website and in effect since 1981 — civic groups seeking to challenge a building inspector’s interpretation of the Town’s zoning code, are expressly exempt from having to pay any filing fees.

These rules notwithstanding, Town Attorney Tim Lewis refused to allow the ECC to file its appeal unless the $500 was paid. Mr. Lewis has thus far successfully blocked any attempt by town board members to refund all or any portion of that money, and despite repeated promises by Mr. Feiner at public meetings of the town board to have the matter addressed, the town board has not done so.

The building inspector ruling at issue was that no variance was needed to meet the 200-foot requirement because, in the 1960s, in connection with the constuction of the Sprain Brook Parkway, the state acquired a sliver of property alongside Underhill and Sprain Roads. Mr. Lucido said the property acquired by the state satisfied the zoning code’s requirement for a state “right-of-way.”

The ECC argued, however, that the only “right of way” that would meet the Town Code’s requirements for assisted living facilities is the span of property the runs on either side of any state or county road, including the roads themselves, and that, accordingly, the sliver of state-owned property along Underhill and Sprain Roads, both of which are town roads, does not satisfy that requirement.

Mr. Bernstein pointed to the map of potential assisted living sites that the Town Board presented to the public at the public hearing on the proposed zoning change in December 2012. That map, which showed all potential assisted living sites within 200 feet of any state or county “right-of-way” within unincorporated Greenburgh, only included sites within 200 feet of the span of property that runs alongside the Town’s state or county roads.

He also said that if the building inspector’s interpretation were upheld, it would mean that, even though the town code says state parkways are excluded from the state or county rights-of-way, assisted living facilities could then be built in residential neighborhoods within 200 feet of the Bronx River Parkway, the Sprain Brook Parkway, and the Saw Mill River Parkway.

Mr. Bernstein also pointed out that the documents from the 1960s that were filed when the sliver of property at issue here was actually acquired nowhere state that the property was being acquired for a state “right-of-way.”   By contrast, he noted that a second nearby parcel also acquired from the same owner at the same time was specifically labeled a “Temporary Easement for Highway Detour” – thus making clear on its face that the purpose was to create a state-owned “right-of-way.” A property “easement” is a “right-of-way.”

He added that state records showed that the temporary easement was terminated when the Sprain Brook Parkway construction was completed and the property returned to its original owner.

Mr. Bernstein explained that the reason the parcel now at issue was not a right-of-way but permanent state property was that it was used to construct drainage alongside Underhill Road, which the state relocated and rebuilt in connection with the bridge that the state then built for Underhill Road to cross over the Sprain Brook Parkway.

Mr. Bernstein pointed out that if the Zoning Board accepted the building inspector’s conclusion that the sliver of property the state acquired was a state “right-of-way” for purposes of the assisted living ordinance, then any site in any residential neighborhood in unincorporated Greenburgh within 200 feet of any state or county-owed property would satisfy the zoning ordinance’s requirements, which was never the Town Board’s intent – and which the Town Board never studied.

The Town Board said in January 2013 that the reason it was adopting the 200-foot requirement was to limit the location of assisted living facilities in residential neighborhoods to state or county roads so that emergency vehicles can reach them more quickly and to reduce the noise and traffic that locating large commercial facilities in residential neighborhoods would create.

Consistent with the view that town officials want the Shelbourne project approved was Mr. Lucido’s further opinon that even though the Sprainbrook site did not meet the 4 acre mininum, no variance was required for that either.

Here, Mr. Lucido concluded that the applicant could get around the 4 acre minimum by applying for a special permit from the Town Board under a provision of the Town’s zoning code which excuses minimum property requirements if the applicant can show that the portion of land needed to satisfy the minimum had been “donated” to the state for “highway widening” purposes at the specific request of the Town Board.

Here, Mr. Bernstein demonstrated that the Town has no request of having ever made such a request and the applicant has made no showing of any “donation” because there was no evidence given to the building inspector showing any right to compensation had been waived.

The applicant’s attorney argued that the Zoning Board should pay no attention to the failure of the applicant to satisfy those requirements because only the Town Board gets to decide if those criteria were satisfied.

Mr. Bernstein argued, however, that the issue before the zoning board was not whether the special permit for not having sufficient land would be granted, but rather whether the building inspector was correct when he said no variance was required, Mr. Bernstein said that whenever any other applicant wants to build but its specifications fall outside the zoning code’s requirements, an variance is required, and the same rule should apply here too.

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