The Greenburgh Zoning Board of Appeals Thursday evening issued its long-awaited formal decision overturning the determination by the Town’s building inspector that no variances were required to construct an 80-bed assisted living facility on the site of the Sprainbrook Nursery even though the Zoning Code permits such assisted living facilities in residential neighborhoods only if they are within 200 feet of a state or county right-of-way, excluding parkways and interstates.

Shelbourne Formation, Inc. applied last year to build a new facility at the site of the Sprainbrook Nursery which, if approved, would enable it to open with a prestigious Scarsdale post office address.

The Sprainbrook Nursery is located in Edgemont on Underhill Road which, with its dangerous hairpin curves, is a town road. The nearest state or county right-of-way is Central Avenue, which is nearly a mile away.

In early 2013, the Town Board had amended the Town’s zoning code to permit assisted living facilities in all residential neighborhoods throughout unincorporated Greenburgh, as long as they were within 200 feet of a state or county right-of-way. It did so to ensure, among other things, that emergency medical vehicles could easily reach such facilities.

Assisted living facilities are not required to have any medical personnel on staff and typically rely on municipalities to furnish emergency medical vehicles to treat their residents, and, if necessary, to transport them to area hospitals.

The first responders for medical emergencies in Edgemont is the Greenville Fire District, which means that cost of providing emergency medical services if Shelbourne’s facility is built, will be borne largely by Edgemont taxpayers exclusively.

The Zoning Board’s ruling is a major victory for the Edgemont Community Council, which last August filed the appeal of the building inspector’s ruling, and was joined by the Council of Greenburgh Civic Associations, as well as around 20 neighboring property owners – and a defeat for town officials who have been championing the Shelbourne project.

Despite the ZBA ruling, town officials are not giving up. At the request of the Town’s Planning Commissioner, Garrett Duquesne, the Town Board has scheduled a vote this coming Wednesday to hold a public hearing on a state-mandated environmental quality review of Shelbourne’s application for a “special permit” to operate an assisted living facility.

ECC president Bob Bernstein said town officials are going forward with the public hearing, known as SEQRA, in an effort to try to create a written record to lobby the ZBA to grant the variance from the 200-foot requirement.

“The ZBA’s ruling is important because it makes clear that Greenburgh’s zoning code does not permit assisted living facilities in any residential areas that are more than 200 feet from a state or county right-of-way,” Mr. Bernstein said.  “It’s simply not a permitted use, which the ZBA underscored by referring to the map the Town Board published when the code was amended to allow assisted living facilities, showing exactly where they were a permitted use and, most importantly, where they were not.”

“Therefore, under state law, Shelbourne would need to seek what is known as a ‘use variance,’ which is very difficult to obtain,” he added.

Under state law, to obtain a “use variance” the applicant must demonstrate factually, by dollars and cents proof, an inability to realize a reasonable return under existing permissible uses.

Here, because the property is located in an area zoned for single family homes – and homes in Edgemont currently sell at a substantial premium – it is unlikely that Shelbourne would be able to satisfy the requirements for a “use variance.”

“Nevertheless,” Mr. Bernstein said, “town officials are trying to stack the deck in Shelbourne’s favor by commencing its own SEQRA proceeding in an obvious effort to try to influence the ZBA’s decision-making.”

Mr. Duquesne is taking the position that even though the Town’s zoning code does not permit the Sprainbrook property to be used as an assisted living facility, he is assuming that because the site is still within a residential zone, it doesn’t need a use variance.  Accordingly, he sees nothing wrong with spending taxpayer money and town resources at this time on a SEQRA study — and so far, no one on the Town Board has disagreed.

The Town of Bedford recently tried to do something similar and failed in court, Mr. Bernstein said, citing a case decided by the Second Department exactly a month ago — on March 23, 2016.

There, a car-washing business needed a use variance because a small portion of the lot it acquired was zoned residential. The Bedford Town Board, in an effort to influence the Zoning Board to grant the variance, commenced its own SEQRA proceeding — just as Greenburgh is trying to do here — and, to no one’s surprise, found no adverse environmental impact, and the Zoning Board granted the use variance.

The Second Department last month affirmed a lower court ruling vacating the ZBA’s decision to grant the use variance because of failure to adhere to the strict requirements needed. Ironically, the court upheld the SEQRA determination, but ultimately it proved to have no value. The case is DeFeo v. Zoning Board of Appeals of Town of Bedford, 137 A.D.3d 1123 (2d Dep’t March 23, 2016).

“In Greenburgh, it’s pretty obvious that the Town Board, which very much wants the Shelbourne project to be approved, is now hoping to do what the Town of Bedford tried to do, but failed, which is to use SEQRA to influence its Zoning Board to grant a use variance,” Mr. Bernstein said.

“Given everything else the Town Board and town staff have tried to do to get Shelbourne approved, from promoting the project on the Town’s website, to getting the building inspector to decree that no variances are required, to demanding that the ECC pay $500 to file its appeal when the rules expressly exempt civic associations from such filing fees, this latest underhanded tactic should come as no surprise,” he added.

“Even worse, by commencing SEQRA without waiting for the ZBA to determine whether it will grant a use variance, the Town Board is committing itself to spend taxpayer dollars and town resources, including staff time, on an environmental review of a project which, if the threshold criteria for a use variance are not met, would stop Shelbourne in its tracks,” Mr. Bernstein said.

“Why town officials would engage in such behavior, in the teeth of a recent appellate court ruling that shows it won’t work, is beyond me. It’s also a slap in the face to everyone looking for due process, fair play and an even playing field when it comes to land use decisions in the Town.”

Mr. Bernstein had asked two weeks ago that the Town Board not proceed with SEQRA on Shelbourne until the Zoning Board had ruled, and Town Supervisor Paul Feiner, who has been leading the campaign to win approval for Shelbourne, agreed to hold the matter over for two weeks. But immediately after ZBA decision was released, Mr. Feiner put the SEQRA matter back on the Town Board agenda for a vote this coming Wednesday.

In rejecting the determination that no variances were required, the Greenburgh Zoning Board held that a crescent shaped sliver of land owned by the State of New York bordering the Sprainbrook site along Underhill Road did not meet the definition of a “right-of-way,” which must be either a right to cross property belonging to another or, if all right, title and interest in such property has been acquired, it must be for allowing continuous access such as for a road, railroad or utility line.

The Zoning Board found that the state had acquired title to the property, but that it wasn’t for any of the uses associated with a right-of-way. Accordingly, the board found the property did not meet the definition of a right-of-way, as that term was used in the Zoning Code.

Former building inspector John Lucido had determined last July that because the state had included the property on a list of state “rights-of-way,” that the property thus came within the Zoning Board’s requirement.

The Zoning Board noted that the Town had received a letter dated February 26, 2016 from the New York State Department of Transportation which stated that it uses the term right-of-way “interchangeably” with the word “property” – meaning that the state’s having labeled a property a “right-of-way” does not make such property a “right-of-way.”

The Zoning Board also addressed in its ruling the building inspector’s determination that no variance was required to meet minimum four-acre zoning requirement for assisted living facilities.

The board held that no variance was required at this time because Shelbourne had indicated an intent to try to get around that four-acre minimum by invoking an exemption from that requirement that only the Town Board can give.

The Sprainbrook site is only 3.79 acres, but Greenburgh will overlook the shortfall if Shelbourne can show that the remaining .21 acres was donated to the State of New York for road widening purposes at the request of the Town Board and where the original owner of the property who agreed to the donation, agreed to waive any right to compensation in return.

The Zoning Board said that if Shelbourne cannot satisfy that criteria for an exemption, it would then need to get a variance from that requirement too.

“Shelbourne knows it cannot meet the requirement for an exemption from the four-acre minimum,” Mr. Bernstein said, “So it will ultimately have to seek a variance.”

“However, the failure to obtain a use variance, which is what is needed to get around the 200-foot requirement, should be the show-stopper here,” he added.

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