The Greenburgh Zoning Board of Appeals tonight voted 4-3 to approve granting Formation Shelbourne a 3000% variance to construct a 90-bed assisted living facility at a site in Edgemont that is more than a mile from where such facilities are permitted under the Town’s zoning code.   The board also agreed to waive the code’s minimum four-acre requirement for the Shelbourne facility.

No variance of that magnitude has ever been granted in the Town’s history — and possibly in the history of zoning cases in the State of New York — and its approval tonight will almost certainly provide even more support for Edgemont’s incorporation.

Those supporting Edgemont’s incorporation have been pointing to the Town’s support for the Shelbourne application as an example of the Town’s interests in zoning and planning not being aligned with those of Edgemont whose taxpayers will now have to bear the financial burden of having to provide emergency medical services to that facility, and whose residents had thought the Town would enforce its code and protect an otherwise quiet residential neighborhood.

For its part, the Town has for years been counting on revenues from the building fees Shelbourne would have to pay to balance the Town’s budget.

The vote taken tonight was a non-binding straw vote and, while subject to change when a formal written decision is prepared, it will likely become final.

The four ZBA members who voted in favor of granting the variances were Daniel Martin, Rohan Harrison,  William Losapio and Louis Crichlow, all four of whom are political supporters of Town Supervisor Paul Feiner and none of whom live in Edgemont.

Their support for the variances tonight will almost certainly allow Mr. Feiner and the Town Board to extricate themselves from a lawsuit brought by Shelbourne last year — the second of two such lawsuits that Shelbourne brought — when Mr. Feiner got the town board to rescind a “negative declaration” that the Shelbourne facility would have no adverse environmental impact on the surrounding neighborhood.

Residents had asked Mr. Feiner to rescind the “negative declaration” because it was based on an inadequate study that thumbed its nose at concerns raised by the Greenville Fire District, but Mr. Feiner refused, insisting that the town board could rescind simply to let the zoning board do its own analysis — a decision that Shelbourne attacked in court as arbitrary and legally unsustainable.

The Town earlier this year had lost a motion to dismiss the lawsuit and was facing a claim by Shelbourne for damages if, as a result of the “negative declaration” being rescinded, it did not get its variances approved.

When the “negative declaration” was rescinded last summer, Shelbourne executive Jim Kane said he intended to hold Mr. Feiner accountable for any damages Shelbourne suffered because, he said, Mr. Feiner had assured him that Shelbourne would eventually get all the approvals it needed.

Town Attorney Tim Lewis had entered into an agreement with Shelbourne last month to put off the Town’s time to answer that Shelbourne lawsuit until after tonight’s ZBA meeting — and the vote tonight, if it sticks, will almost certainly get Mr. Feiner off the hook in terms of Shelbourne’s latest litigation.

There was no mention of the lawsuit by any ZBA members.

The four voting in favor of the variances expressed no concern about the impact that erecting the facility would have on the Greenville Fire District which, once the facility is built, will be primarily responsible for providing emergency medical services.

Nor did those supporting the variances express any concern about the double hairpin curves on Underhill Road that emergency vehicles would have to use to get to the site.  Nor did they make any mention of the zoning code’s requirement that access to the state or county right-of-way be “direct” and not by a “circuitous route.”

In fact, even though the four-year old legislative history explaining why these specific requirements were imposed was read to them last month, none of the ZBA members supporting the variance said tonight they could even recall why the zoning code required that assisted facilities be located no more than 200 feet from a state or county right-of-way in the first place.

The Town had imposed the requirement in order to ensure that those living in assisted living facilities had quick access to emergency medical care while at the same time not disturbing residential neighborhoods.

The ZBA had rejected the Greenville Fire District’s request that an independent consultant be hired to assess the impacts such a facility would have on the fire district and its ability to provide emergency medical services at that location.

Mr. Feiner had been an outspoken supporter of the project since it was first proposed several years ago.

Assisted living facilities generally rely on local municipalities to provide emergency medical services to their aging residents, and such costs must normally be borne by taxpayers. Here, the cost will be borne entirely by Edgemont taxpayers.

Voting against granting the variances tonight were ZBA chair Eve Bunting Smith, Edgemont resident Kristi Knecht, and long-time ZBA member Larry Doyle.

Ms. Bunting Smith warned that granting such a substantial variance would set a precedent that would allow assisted living facilities to be built throughout Edgemont and the rest of unincorporated Greenburgh without regard to the zoning code requirement that such facilities not be more than 200 feet from a state or county right-of-way.

She also warned that approving such a substantial departure from the zoning code was tantamount to rewriting the code itself, which is legally impermissible for a ZBA to do and, noting that their decision would almost certainly be appealed to a court, urged her colleagues not to decide until they had read the case law that said what they were doing was legally improper, but she was outvoted.

By law, once a ZBA hearing is closed for decision only, the board has 60 days to render its decision in the form of a written opinion. If the opinion is ready by the ZBA’s next meeting, on June 22, the ZBA could vote to approve it then; alternatively, unless Shelbourne agrees to give the ZBA an extension of time, it will be approved at the meeting of the ZBA on July 20.

Speaking in favor of granting the variances, Mr. Martin noted that he was 80 years old, lived off Sprain Road near the proposed site, and said he supported the variances because he liked assisted living facilities and thought having more of them built in Greenburgh was “good for the Town.”

Mr. Losapio said he supported granting the variances because he wanted the property’s owner to be able to sell the property to whomever he wanted and dismissed any concern about safety along Underhill Road noting that all roads are dangerous once cars are allowed on them.

Mr. Crichlow said he grew tired over the past several months having to listen to the same people from Edgemont speaking against the variances over and over again.  He said that granting a 3000% variance was not a problem for him because he thought the impact on the hundreds of homes along the Underhill corridor was negligible.

Mr. Harrison who, like Ms. Bunting  Smith, is a lawyer, first said he thought he should at least read the court rulings that opponents of the variances presented tonight to the ZBA, but then, worried that the 4-3 vote in favor would not stand,  abruptly changed his mind and said that while he planned to read the decisions, he did not expect to read anything that would change his mind.

Once the decision to grant the variances becomes final, Shelbourne still needs formal approval from the Town Board for its “special permit.”  That decision is expected to be a formality because, even if Mr. Feiner chooses to pander to Edgemont residents by saying he’ll vote no, the other board members will approve it.

Once the decision to grant the variances becomes final, an appeal must be filed within 30 days.  If such an appeal were to be filed, it could likely tie up the project in litigation for at least a year or two.

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