The company that has been trying for the past two years with the help of Greenburgh officials to build an 80-unit 94-bed assisted living facility at the corner of Underhill and Sprain Roads in Edgemont – which is more than a mile from the area where such facilities may be located under the Greenburgh’s zoning code – is now suing the Zoning Board for having determined that the company needed a variance under the Town’s zoning law.

But Formation-Shelbourne Senior Living Services, LLC filed suit in Westchester State Supreme Court on June 9, 2016 not only against the zoning board — it also filed suit against the Edgemont Community Council, the Council of Greenburgh Civic Associations, and 17 neighboring residents – all because they joined with the ECC in appealing an interpretation by the Town’s building inspector last July that the Shelbourne facility did not need any variances.

Town Supervisor Paul Feiner and other town officials have been waging a public campaign for the past two years to win approval for Shelbourne’s project. They presumably knew all along about the lawsuit which was filed the same day that town officials that evening unanimously approved a “negative declaration” refusing to study any impacts the project may have on hundreds of residents who live along the Underhill Road – but they kept it quiet.

They also did not mention it during the public hearing last week on the Town’s draft Comprehensive Plan, where the subject of Shelbourne and the Town Board’s actions on Shelbourne’s behalf had come under a barrage of criticism from Edgemont residents.  A petition signed by over 200 residents was presented to the Zoning Board objecting to the Shelbourne project.

Even though the complaint had been filed two weeks earlier, and answering papers must be served no later than July 10, process servers did not begin serving residents with Shelbourne’s three-inch thick complaint in their homes until early Saturday morning, June 25 – and alarming several of them.

It is unlawful in New York for developers to retaliate against private citizens and civic groups who speak out against a project at a public hearing by then bringing suit against them.  All the civic associations and the residents stand accused of in the lawsuit is having objected to the building inspector’s interpretation of the zoning code.

The lawsuit’s filing could have a chilling effect on the public’s continued willingness to speak out against the granting of the variances that Shelbourne is seeking before the Zoning Board, which is scheduled to conduct its third public hearing on the matter next month — and if town officials like Planning Commissioner Garrett Duquesne who had been working nonstop on Shelbourne’s behalf knew that its strategy to win town approval included suing neighbors who expressed opposition, it would represent a nadir in town relations with residents on land use matters affecting individual neighborhoods.

The filing of the lawsuit appears to be part of a pattern of harassment and intimidation that began last August when the Town refused to let the appeal of the interpretation even be filed unless it received a $500 filing fee. Town rules that have been on the books for the past 30 years prohibit the filing of any such fee when civic groups seek review of building inspector interpretations of the zoning code. The Town did not agree to waive the fee until earlier this year, when the zoning board took a straw vote in favor of the granting the ECC’s appeal.

Here, not only did town officials not disclose publicly that the company they had been working so closely with decided to file suit against town civic groups and residents, as well as the zoning board,  but Shelbourne itself made no such disclosure when it appeared June 16, 2016 at a public hearing of the zoning board which is continuing to hear Shelbourne’s application for the variances it now claims in court it should not now have to get.

It is black letter law in New York that applicants seeking land use approvals may not commence litigation against the municipality responsible for issuing such approvals unless and until the applicant has “exhausted its administrative remedies.”  Here, because Shelbourne is still actively seeking variances which it might still get, Shelbourne does not appear to have exhausted its administrative remedies; nor has it alleged that continuing to proceed before the Zoning Board would be a futility. Indeed, the Town Board’s negative declaration on June 9 was approved to help Shelbourne get the variances it now needs.

The ECC, which took the laboring oar in presenting the community’s objection to the building inspector’s determination that no variances were required, has not yet been served with the papers.  UPDATE:  The ECC was served at 8:30 a.m. Monday, June 27, thus giving it only 13 days to respond.

The lawsuit claims that the zoning board’s determination that variances were required under Greenburgh’s zoning code was arbitrary and capricious and should be reversed.

The zoning code requires that assisted living facilities be located within 200 feet of a state or county right-of-way, excluding interstate highways and state parkways.

When Shelbourne initially filed its application for approval last year, the building inspector said it needed to get a variance because the site was not within the required 200 feet.

When the matter was originally scheduled to be heard by the zoning board, the ECC last year notified the board that the type of variance required was a “use variance” which cannot be granted absent economic proof that only an assisted living facility could be used at the site. Because the site was in an area zoned for single family homes in Edgemont, it might be difficult for the applicant to meet that strict standard.

One day after the ECC letter was sent, Shelbourne informed the zoning board that it was withdrawing its application for variances and two weeks later the building inspector issued a written opinion stating that no variances were required.

The reason no variances were required, the building inspector said, was that in the 1960s, the New York State Department of Transportation’s Bureau of Rights-and-Way had required a small parcel of land adjacent to the site, which Shelbourne said qualified as a “state right of way” within the meaning of the Town’s zoning code.

The ECC, the Council of Greenburgh Civic Associations, and the 19 area residents all challenged that interpretion of the code, which is expressly provided for in the zoning law.

After considering the matter for more than 8 months, the Zoning Board held that the term “right of way” either means the right of a party to access property of another or it can refer to a public roadbed. Here, though, the parcel of land in question was found to be owned by the state and did not, by its terms, give the state the right to access property of another. Nor was the property a public roadbed.

Accordingly, the ZBA found that the state-owned land in question did not satisfy the requirement of a state or county right of way under the code.

The law firm that brought the suit on Shelbourne’s behalf was Wilson Elser, which is a prominent White Plains law firm that frequently represents the Town. Also serving as Shelbourne’s litigation counsel in this matter, but not named in the papers, is the law firm of Bleakley Platt, another prominent White Plains law firm.

In addition to representing Shelbourne, Bleakley Platt also represents the developer seeking to build apartments on Dromore Road adjacent to the Greenburgh Nature Center.

In the Dromore litigation, Bleakley Platt alleged that the Town had illegally corrected the Town’s zoning map because of alleged pressure from Edgemont residents trying to prevent the construction of multifamily housing in violation of fair housing laws. Because town supervisor Paul Feiner had sided with the developer, the Town never answered those allegations about alleged Edgemont interference – which never in fact took place. However, as a result of its not even answering those untrue allegations, the Town was found to acted in “bad faith” and property that for decades was zoned only for single family homes was rezoned by the court to permit construction of apartments.

One of the partners in Bleakey Platt, the law firm that represents the Dromore developer, is the wife of one of the two members of the 7-member Greenburgh planning board who happens to live in Edgemont.

That planning board member publicly recused himself from joining his colleagues in unanimously approving the Dromore project, which is currently in litigation; he did not recuse himself when the Planning Board addressed the Shelbourne matter on May 6, 2015, May 16, 2015, July 15, 2015, and December 2, 2015; he was recorded as absent, however, when the Planning Board addressed the matter on September 16, 2015, and on October 7, 2015, which is when the Planning Board voted unanimously to recommend that the Town Board approve the Shelbourne project – notwithstanding that there were unresolved issues at the zoning board as to whether the project required variances which it might not receive.

During the many times that the matter was on its agenda, no member of the Planning Board, including the two who live in Edgemont, ever once raised any concern about the project being located in a residential neighborhood more than a mile from where the Town’s zoning code permitted.

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