Oops, they’re about to do it again.

Already facing a $26 million lawsuit for allegedly violating federal laws against making housing unavailable to families with children, the Town of Greenburgh last night considered a proposal unanimously approved by its planning board to create a brand new zoning district exclusively for senior citizens aged 62 and older that appears to violate that very same law.

At issue is a planning board recommendation that the Town amend its zoning law to create a new multifamily housing zoning district for senior citizens only. The Town already has a half dozen different zoning districts for multifamily housing that permit senior housing – but this new zoning district would be the first to be age-restricted.

Planning board member Hugh Schwartz, an Edgemont resident, took the lead before the planning board in calling for the creation of the seniors-only zoning district, to be known as “M-SH62” and suggested that once formally added to the Town’s zoning law, the Town should consider rezoning at least a portion of Central Avenue in Edgemont as “M-SH62.”

Mr. Schwartz’s wife is a partner in the law firm representing the developer that has accused the Town of violating the federal fair housing laws in connection with a property in Edgemont.  In legal papers filed in federal court, the developer has argued that the Town should be liable for housing discrimination, without regard to any specific intent to discriminate, if the Town enacts policies or laws that have a “disparate impact” on the availability of housing to families with children.

The Town has moved to dismiss that lawsuit, which also names as defendants the Greenburgh Nature Center and the Sisters of the Blessed Sacrament, who have also moved to dismiss the suit.  However, lawyers for the developer would almost certainly use Mr. Schwartz’s proposal to notify the federal judge deciding the motion that the Town itself is discriminating in violation of the federal fair housing laws – this time by creating a new zoning district that expressly discriminates against families with children.

The federal fair housing laws were amended in 1988 to prohibit discrimination based on “familial status.”  While the statute does exempt housing for older Americans, that exemption appears to apply only to housing providers that comply with certain federal regulations.

The exemption does not apply to municipalities, and even if it did, any failure by a municipality to comply with federal regulations for senior housing would almost certainly result in a fair housing law violation, and there are reported decisions where that is exactly what happened.   Thus, while the exemption permits housing to be limited to persons aged 62 and older, if the housing provider makes an exception for a person under 62 to care for someone in such housing, the provider would then have to comply with more liberal rules for housing persons aged 55 and older, where up to 20% of the residents may be under age 55, and any noncompliance could result in liability and lead to millions of dollars in damages.

If that were to happen here, because this is a land use matter, the damages would have to be paid solely by the residents of unincorporated Greenburgh. Unincorporated area taxpayers are already paying a $6.5 million settlement for damages stemming from the Fortress Bible litigation where the Town was found guilty of violating the First Amendment rights of a church.

The idea for the new zoning district originated in connection with a proposal to renovate low income housing for seniors living on Manhattan Avenue in the Fairview section of the Town. That area is in what is now called the “Urban Renewal District” – a now-obsolete term dating back to the 1960s when the Town first obtained federal funding to provide new housing in that area. The concept of “urban renewal” ended several decades ago and the senior housing that was built back then has outlived its useful life.

The Town’s recently enacted “Comprehensive Plan” called for eliminating the “Urban Renewal District” and rezoning the property there with more up-to-date zoning classifications.

The Town has at least six different multifamily zoning districts. The specific zoning districts are M-6, M-10, M-22, M-25, and M-174 — with the number representing the maximum number of apartments that may be built per acre. In addition, multifamily housing up to 35 units per acre, on minimum two-acre lots, is permitted on Central Avenue in the Central Avenue Mixed Use Zone known as CA.   Senior housing is a permitted use in all of these zoning districts.

If the Town had wanted to avoid the risk of running afoul of the federal fair housing act, it could have easily reclassified the Urban Renewal Property where the senior housing is to be rebuilt using one of the existing “M” districts.

But no. Planning board members led by Mr. Schwartz saw the matter differently. In its April 20, 2017 report to the Town Board, they explained the need for creating a special zoning district for seniors, stating, “[n]o existing Zoning District of the Town has been identified to specifically permit multifamily senior housing at a moderate density and scale, highlighting a deficiency in the Zoning Ordinance.”

The planning board thought by creating a new zoning district classification exclusively for senior citizens, the Town could then rezone portions of Central Avenue in Edgemont for senior citizens only too. The planning board said “[i]f this district is approved, it would have the potential to be used in areas of the Town where such a use is deemed consistent with the Comprehensive Plan.”

“Based on the Plan, related future land-use maps and existing land uses, the Planning Board believes that the district has potential in the following other areasa of the Town: limited portions of th Town’s three major mixed-used corridors (Rt. 100 – Central Park Avenue, Rt. 119 – Tarrytown Road and Rt. 9A – Saw Mill River Road, and the Westchester Community College Campus, where the Westhelp site exists as former multi-family buildings and future planned multifamily senior housing buildings.”

The Planning Board’s recommendation made no mention of the Federal Fair Housing Act or rules against passing laws that would make housing unavailable to families with children.

Under the Town Code, once a planning board makes a positive recommendation, it would take a supermajority of the Town Board – four out of five members – to overturn the planning board’s recommendation.

Town board members at last night’s public hearing on the proposal did not seem even to be aware that forming a seniors only zone would create any legal issues.  Town Supervisor Paul Feiner, who was hoping the Town Board would quickly approve creation of the new zoning district within the next few weeks, reluctantly asked the town attorney for a legal opinion on the issue.

Town council member Francis Sheehan said nothing about legal risks, and instead stressed that approving a new zoning district classification for seniors only did not mean that the new zone would necessarily be approved for Central Avenue in Edgemont, adding that such a reclassification of property, once proposed, would be the subject of future public hearings.

Apparently unconcerned with any role the town attorney should have played in the process, Town council member Kevin Morgan suggested the purpose of the public hearing last night was to learn from the public if there were any legal problems with creating a senior-only zoning district, and like Mr. Sheehan, stressed that it was inappropriate even to raise the possibility of the new zoning district for senior being placed on properties in Edgemont.

Based on his comments, Mr. Morgan did not appear to have read the planning board recommendation and thus did not know that the planning board expressly contemplated reclassifying portion of Central Avenue as seniors only — once the creation of the new zoning district was approved.

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