The Greenburgh Planning Board tonight gave final site plan approval to a proposal to build a 45 unit 83-bedroom apartment building on 2.3 acres of mostly wooded land off Dromore Road adjacent to the 33-acre Greenburgh Nature Center, a monastery on six acres owned by the Sisters of the Blessed Sacrament, and the Scarsdale Woods apartment complex.

The approval was unanimous. One of the two residents from Edgemont on the 7-member planning board, former fire district commissioner Michael Golden, voted to approve the project anyway, despite misgivings, saying the project was terrible and he hoped it would not be built.

He voted yes after getting the board to delete findings — apparently added by town staff to bolster the developer’s upcoming legal case against the nuns — that “the proposed action is consistent with the surrounding area” because, Mr. Golden said, with a nod to the nuns who sat silently in the audience, the proposed construction was “absolutely not” consistent with the surrounding area.

Mr. Golden also got the planning board to delete a finding that the redevelopment of the site “is an overall enhancement to the site and general area” because he said it was not.

The second planning board member from Edgemont, Hugh Schwartz, recused himself from the vote after disclosing last month that the developer’s law firm, which had successfully sued the Town and is planning once again to be in court against the nuns, had just hired his wife to be a partner.

The plan approved tonight calls for 45 apartments to be constructed, consisting of 38 two-bedroom apartments and seven one-bedroom units.

The plan also calls for Dromore Road – a narrow country lane — to be widened from 18 feet to 26 feet – but only for the 70 feet of Dromore Road stretching along where the project will front.  Mr. Golden said he feared the rustic look of Dromore Road as the gateway to an historic nature preserve and retreat for the nuns would be forever destroyed by the unusual partial widening of the road halfway up the hill.

In other words, Dromore Road will remain 18 feet wide at its entrance to Central Avenue and along the side where Scarsdale Woods apartments are located – getting wider only as the road hits the 2.3 acre site the developer owns — and shrinking back to 18 feet the rest of the way.

A cheap asphalt sidewalk will have to be constructed from Central along Dromore to the entrance to the property, with a concrete sidewalk to be built from the entrance on Dromore to the building itself.

Tonight’s approval came after an appellate court ruled last fall that the property, which is zoned only for single family residential housing, must be deemed to be in the Central Avenue mixed use zone, which permits multifamily housing, and where Scarsdale Woods is located, after a lower court said town officials acted in bad faith in early 2007 when, without legal notice and a public hearing, they corrected a drafting error on the Town’s zoning map that had mislabeled the property.

The finding of bad faith was based on allegations by the developer that town officials changed the map without legal notice and a hearing because of pressure from Edgemont residents and civic leaders who were opposed to multifamily housing being built. In fact, one-third of Edgemont’s entire housing stock consists of 900 apartments along Central Avenue.

Even though the smear against Edgemont was baseless — Edgemont civic leaders had nothing to do with the map being changed — Town Supervisor Paul Feiner, who sided with the developer during the controversy, never disputed it and the Town’s attorneys, presumably at Mr. Feiner’s direction, never submitted any evidence to rebut it.

However, even though the zoning issue was resolved in the developer’s favor, the property is still subject to a 1912 restrictive covenant that bars construction of apartment buildings, and the Sisters of the Blessed Sacrament, who sat in silence as they watched the planning board okay the project, say they will go to court if they have to in order to enforce their rights to prevent the developer from building anything in violation of their private property rights.

The developer originally sued the nuns, as well as the Town and the Edgemont School District, in July 2013 seeking a declaration that the restrictive covenant was unenforceable.

Edgemont Community Council president Bob Bernstein, an attorney, with the backing of the ECC, agreed to represent the nuns and won a ruling dismissing the case on procedural grounds. The developer, which subsequently filed a motion for reargument that was denied, then filed an appeal. However, after repeatedly obtaining extensions, the developer eventually abandoned the appeal, which the appellate court formally dismissed in an order issued last June.

The developer seems to be waiting this time for the nuns to bring its own lawsuit to enforce the restrictive covenant, which is a more expensive undertaking than simply responding like they did last time to the developer’s lawsuit.

Generally speaking, no lender is likely to finance construction of the project if it appears the property is subject to a restrictive covenant which bars the very construction to be funded.

The Scarsdale Woods apartment complex, which was built in the early 1980s, could not be built until the owners of the property there obtained fully executed written releases of the restrictive covenant from each of the property owners owing parcels that were carved up in the original subdivision dating back to the early 1900s.

The developer here knew about the releases for Scarsdale Woods – and the restrictive covenant generally – when it acquired the property as part of a court settlement in 2006, as they were all disclosed in the developer’s title report.

Next steps for the developer include getting funding for the construction which, as indicated, may be difficult to obtain. Here, the developer is required under the terms of its approval to build so-called “workforce housing,” which is rental housing that must be offered to low-income tenants. In order for such housing to be built, developers normally must obtain government guaranteed low-interest loans.

The existence of a restrictive covenant that bars construction of all apartment houses may make it difficult for the developer to qualify for such subsidized funding.

However, one of the approvals that the developer obtained tonight was approval from the Town’s forestry officer to destroy a total of 84 mature trees on the site.

Because the tree removal is in aid of a site plan for an apartment building that is barred by the restrictive covenant, the nuns may need to commence legal proceedings right away to prevent the trees from being destroyed which, if the building can’t be built in the first place, would irreparably harm the landscape.

Once the tree removal permit is granted, the nuns will have ten days to file an appeal with the Town Board which will have to decide whether to allow the trees to be cut, or whether it will do what the Planning Board refused to do, which is to stay its approvals pending a ruling by the court on the enforceability of the restrictive covenant.

In granting approval tonight, the Planning Board unanimously thumbed its nose at a request made by the nuns at a public hearing last month, at which time Mr. Bernstein asked on their behalf that the Planning Board, in granting approval, recognize that there was a dispute over the restrictive covenant and ask that the approval be stayed pending resolution of that matter so as to avoid any property being irreparably damaged.

Not only did the Planning Board make no mention in any of its findings of the existing controversy over the restrictive covenant, the board posted on its website earlier today draft resolutions giving site plan approval which showed that the board had already voted the day before to grant the developer its approvals – before any formal vote had actually been taken.

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