The Greenburgh Zoning Board of Appeals is on the verge of ruling in favor of the Edgemont Community Council that the Town’s building inspector was wrong last summer when he ruled that an 80-bed assisted living facility proposed to be built nearly a mile from the nearest state or county right-of-way in Edgemont did not need a zoning variance, even though the Town’s zoning code requires that such facilities be located within 200 feet of any such right-of-way.

The building inspector had also ruled last summer that the facility proposed for the 3.79 acre Sprainbrook Nursery site at the corner of Underhill and Sprain Roads, did not need a variance even though the zoning code requires that sites for such facilities must be at least four acres in size.

Late Thursday night, after four public hearings between October and January, the ZBA took a nonbinding straw vote during its public deliberations and all six ZBA members present that evening unanimously agreed that the ECC was right in contending that the building inspector was wrong.

The ZBA then directed its counsel, deputy town attorney Ed Lieberman, to draft a decision to that effect, which Mr. Lieberman said he hoped to have ready for final ZBA approval at its next meeting on February 25. The ZBA ruling only becomes final if and when it formally votes to approve the decision.  ZBA straw votes are rarely reversed, although in Greenburgh it’s been known to happen — but not when the vote is unanimous.

If the ZBA’s unanimous straw vote holds up, the ECC will have won a major victory on behalf of itself, the Council of Greenburgh Civic Association, and nearly two dozen residents who live adjacent to the Sprainbrook property on Deer Hill Lane in the Ardsley School District.

Town officials had made no secret of their support for the project, starting with Town Supervisor Paul Feiner who used the town’s email list and website to tout the project’s advantages, including what he said would be hundreds of thousands of dollars in additional property taxes for the Edgemont School District, with no additional students. Until the ECC protested, Mr. Feiner had included $230,000 in anticipated building fees from the project in the Town’s 2016 budget.

The Town’s planning board also jumped on the bandwagon, unanimously recommending without any input from the public that the Town Board grant a special permit for the facility – without even waiting for the outcome of the ZBA appeal.

Town Attorney Tim Lewis got into the act too by refusing last summer to allow the ECC to file the appeal, unless it paid a $500 fee. Under ZBA rules, bona fide civic groups had been exempt for the past 35 years from paying such fees. (It wasn’t until last Wednesday, six months later, that the Town Board finally voted to return $450 of the $500 fee).

The ZBA case was argued for the ECC by its president, Bob Bernstein, who is also an attorney.

The issue before the ZBA was whether Shelbourne Formation, the assisted living developer, had come forward with evidence showing that a certain small portion of property along the side of Underhill Road immediately adjacent to the Sprainbrook property met the definition of a state “right-of-way.”

The property was acquired in the 1960s by the New York State Department of Transportation when the state was building the Sprain Brook Parkway and appears to have been acquired as part of a plan by the state to relocate Underhill Road, which is a town road, to accommodate a bridge being built for the road over the parkway.

Shelbourne contended that the small parcel of land qualified as a “state right-of-way” because it was acquired by what was then called the “New York State Bureau of Rights-of-Way and Claims” and was listed by the state as properties acquired in the mid-1960s as “rights of way” for the state highway project.

The ECC contended, however, that the property was merely a piece of state-owned property and was not a “right-of-way” as that term is commonly used in case law.

Specifically, Mr. Bernstein pointed out that a “right-of-way” is usually defined as the right of one property owner to access the property of another, and is often referred to as an easement, but that when governments began acquiring property for railroads and public highways, where property was intended for use by the public on a continuous basis, the term “right-of-way” in that circumstance referred to the proposed roadbed itself.

Mr. Bernstein said that when the Town Board decided in January 2013 to permit assisted living facilities to be built in residential neighborhoods, it required that they be located only within 200 feet of a state or county “right-of-way” – not including parkways and interstate highways — and did so to ensure that emergency medical vehicles would be able to get to such facilities quickly, since those residing in such facilities are more likely than the general population to need emergency medical services more frequently.

Mr. Bernstein said state or county “right-of-way” in that context could only mean a state or county roadbed or a proposed roadbed, and that the small parcel of state-owned property adjacent to Underhill Road, a town road, was never intended to be part of a future state or county roadbed because the nearest state or county roadbed was nearly a mile away on Central Avenue.

But even if the term “right-of-way” only meant a right of access to property of another, which is the conventional definition of a “right-of-way,” Mr. Bernstein said the state-owned parcel didn’t meet that definition either because it nowhere gave the state the right to have access to property belonging to someone else.

Shelbourne’s lawyer argued that the definitions of “right-of-way” in case law didn’t matter here as long as the New York State Department of Transportation had listed the property as a “right of way.”

So what does this ruling, if it’s finalized, mean for the project? In theory, Shelbourne would have to seek at least two variances – one excusing it from the requirement that the site be located within 200 feet of a state or county right-of-way, and the other excusing it from the four acre minimum.

But whether those variances will be granted is another matter entirely. The ECC put the ZBA and the applicant on notice last June that it believed state law requires that any departure from the requirement that the facility be located within 200 feet of a state or county right-of-way would require a “use variance” as opposed to an “area variance.”

A use variance is required whenever the zoning law imposes conditions under which it appears the municipality has determined that unless the specific zoning requirement is satisfied, it means that the Town Board has determined that the “use” at that location – in this case, an assisted living facility more than 200 feet from a state or county right-of-way — is not permitted.

Use variances are much harder to obtain from a zoning board because they normally require a showing that the property cannot be used economically for any other use other than the one proposed. Here, the property is zoned residential for single family homes and in the Edgemont School District, the property could almost certainly be sold and used for that purpose.

Most variances before the ZBA are what are known as “area” variances, where the zoning code imposes certain restrictions, but there is no prohibition against the property being used for that specific purpose. Thus, for example, the zoning code may impose certain restrictions in residential neighborhoods on front, side and rear setbacks, for which a homeowner building an addition may need to seek a variance, but use of the property as a home is never in question.

Here, Shelbourne had originally asked the ZBA for variances, but when the ECC put the ZBA on notice that the 200-foot variance was a “use” variance, the Town’s building inspector, John Lucido, issued an opinion, at Shelbourne’s request, that no variances were required at all.

The ECC then appealed that decision, and did so with the support of the Council of Greenburgh Civic Associations and the adjoining neighbors.

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