Legalizing Spot Zoning in “Grayburgh”

There’s a push throughout Westchester County (White Plains, Armonk, Mt Kisco, Croton) and specifically in the Town of Greenburgh by developers to push legalized spot zoning by creating what is known as “Floating Zones.” Spot zoning is the illegal changing of zoning to benefit someone or some group. This has been done repeatedly by Mr Feiner and his various boards during his lifetime tenure as Supervisor for the betterment of, not a neighborhood or a residential taxpayer, but for the many developers who have cozy relationships with Mr Feiner. There are other things he does as well that if not illegal, are at least unethical. But for now, we’ll focus on Floating Zones.

There are many projects underway in Greenburgh. The Floating Zone concept wasn’t created by Greenburgh developers but is certainly embraced and pushed by attorneys for the numerous proposed assisted living facilities they seek to build, flip, and go on to the next one. Floating Zones also legalize (and legitimizes) all of Mr Feiner’s past spot zoning and that is why he endorses it, as do his Town Board and his Planning Board. Keep in mind that Town Board members are required to play along with whatever he wants or be jettisoned, also known as being “Sonya’d.”  Former Councilwoman Sonya Brown was dropped from the Feiner ticket once she stopped drinking the Feiner Kool-Aid and began actually representing the residents and not going along with what Mr Feiner wanted. The Planning Board, Zoning Board of  Appeals, Ethics Board, Recreation Board and all other Board’s members are hand-picked by Mr Feiner and ratified by his Town Board. 

These projects are designed to keep the public off-balance by having multiple conflicting meetings and no ability to have input, allowing these Boards to operate with veritable anonymity. Recently, Planning Board Chair Walter Simon told residents at a property walk-through for the proposed Maplewood Assisted Living Facility property on West Hartsdale Avenue that this was an informational meeting for the Planning Board members and not for the public. So the public was not allowed to ask questions! This is part and parcel with how the Feiner administration is choosing to work now that they’ve been emboldened by winning the last election. They are doing more and more to silence the public. It’s apparently working. The last Town Board meeting found five or six residents in attendance.

Now the Maplewood project developer is requesting a variance to lengthen their proposed building, hot on the heels of the Elmwood Country Club mega-housing development. Elmwood developers are looking to down-zone the former country club from R30 to R20. This would allow them to get a second zone change to create a Planned Unit Development (PUD), so they can build 175 Condominium Town Houses for seniors. That’s the only way for the developer to build Town Houses in a residentially zoned property. They are also looking to donate 14 unusable for housing acres in lieu of having to contribute into the recreational fund as required. But they want the entire acreage to be counted so they can develop more units on the property than they should, basing it on the total 106 acres, not the 92 it would actually be.

The next Assisted Living facility has been proposed once again by the Brightview Corporation and will be built roughly opposite the main entrance to Westchester Community College on Grasslands Road in Mt Pleasant. This is also across from The Grove and the Hebrew Home. This will be another 55-year old or older residential facility. This is important because the developers use senior housing as a major selling point. By housing seniors, there will be little if any kids going into or affecting the school system. The last facility Brightview built in Greenburgh was stuffed into an undersized lot in Glenville on Rt 119 and Benedict Avenue, completely overwhelming that neighborhood. Brightview attorneys also crafted the Town’s Assisted Living Facilities law, crafted around their above mentioned facility. Quid pro quo? Unethical behavior? Not at all -- this is the norm in Greenburgh.

Mired in a legal quagmire is the Dromore Road proposal(s) which has been said to have morphed through many iterations starting from luxury apartments to currently affordable housing. It is, in some small part, the project highlighting the Edgemont Community’s desire to incorporate and break away from the mismanagement grips of the Feiner administration since all other previous attempts have failed. And yet, while all efforts to incorporate have been thwarted by Mr Feiner, accentuating the Edgemont Community’s rationale in seeking incorporation, the Dromore Road project has dragged on and on in the courts. To date, the Town has spent $2.9 million dollars in legal fees in defense of their mismanagement!

Okay, getting back to why spot zoning is so critical to the Town and in particular, these developers. First, no one living in their home, which they purchased with the understanding that their residential neighborhood would remain just that, residential, ever thought that the Town would randomly change their neighborhood’s zoning at the whim of a developer. Second, the 7-years-in-the-making Comprehensive Plan, a document that many believe falls short of truly mapping out a future vision for the Town, had quite a bit of resident input which asked for more green space, less large buildings, more walking ability (10 pedestrian accidents so far this year in Greenburgh) and biking ability. Third, not being held hostage by developers who come in after their private meeting with Mr Feiner and announce that if the Town and the neighborhoods have demands that they will leave. Fourth, we have a zoning code and a Zoning Review Board of Appeals for a reason. By changing over to Floating Zones, we effectually negate any Zoning Code and Comprehensive Plan.

In fact, the Conservation Advisory Council (CAC) believes that the Metropolis Country Club proposal for a Continuum of Care Facility (CCF) “impairs the integrity of the Town’s Comprehensive Plan, and has serious adverse consequences on residents’ expectations regarding zoning in their neighborhood. Moreover, the proposed criteria for CCF’s is totally out-of-keeping with the criteria for Continuing Care Retirement Communities, a similar type of senior housing. With respect to siting a CCF at the Metropolis site, the application can proceed without adopting a floating zone. It may be able to proceed without any Zoning Code amendment at all or only a simple definitional amendment.”

Mr Feiner, his assorted Town Boards are caving in to the developers and special interest groups looking to build their Assisted Living facilities, hand them off to a management company and then disappear until the next postage stamp parcel becomes available for them to over-develop. Should this be allowed to continue? Of course not. But this is Mr Feiner’s modus operandi. Meet with the developers, tell them what they need to do and once completed get record-setting and speedy approvals. Does Greenburgh need this many assisted living facilities? Doubtful. Will you be able to afford to live there? The minimum costs we’ve all seen so far has been around $7,000 per month. Once you run out of money, then what? Mr Feiner is all but turning Greenburgh into “Grayburgh.” This is not a good transformation for our Town and has to change. It’s the only way we’ll get A Better Greenburgh.

Opposition to Zoning Change Increases

On Wednesday, June 17, 2015, Hartsdale Park Association (hartsdalepark@yahoo.com) sent a letter to its membership regarding the important zoning change the Town Board is considering to benefit GameOn 365, a for-profit commercial entity. It details many of the aspects this decision will have as it will negatively impact the entire Town, not just the Dobbs Ferry corridor.

Dear Hartsdale Park Residents:
Much of the discussion in the case of Game-On's request for special rezoning seems to be focused on the Game-On use of the Vizioli property, the former golf driving range. That is only part of the proposal before the Town Board. Their proposal is to insert a commercial use ( indoor/outdoor recreation center) into a residentially zoned area by special permit. Its impact goes far beyond the Vizioli property.

The amendment to the Zoning Ordinance proposed by David Steinmetz, attorney for Game-On, requires the Town Board to grant a special permit if the applicant meets certain conditions. There is no discretion involved. If the applicant meets all of the conditions spelled out in the code, the permit becomes a right.

The problem is once you allow any commercial entity in a residential zone, there is nothingto stop that use from being expanded OR for it to happen anywhere else in Greenburgh! This is a VERY dangerous precedent to set.

Suppose Game-On receives approval and builds a 107,000 sq.ft. building, then is sold or goes out of business. The community would have a huge empty building with 300 parking spaces and other infrastructure (roads, water, sewer, etc.) in place. Any number of fairly low-traffic-impact businesses might want to locate there, and depending on the financial standing of the Town, such commercial use might be encouraged. Also, there is nothing to stop other commercial uses from seeking entry into OTHER residential districts. If the Town does it once, other commercial uses will seek approval.

Paul Feiner argues that Dobbs Ferry Road is already a recreational and/or commercial corridor - Frank's, East Rumbrook Park, Carlson's Nursery, Elmwood Country Club, Elmwood Day Camp, Fairview Fire House. All of the uses cited (other than Frank's Nursery) -- parks, farms, membership clubs, camps, firehouses -- are allowed in one-family residence districts as permitted uses or by special permit. They are listed as the residential and related uses Zoning Ordinance. Fully enclosed commercial recreational facilities are differentiated and listed as "commercial.”

The focus of our opposition must be on not introducing any kind of commercial use into residentially zoned districts. Once they get a toe in the door, there is no going back!
Some may argue that we already have done this when assisted living facilities were introduced into residential zones. However, "health care facilities” have been Special Permit uses for more than two decades and these are residential uses. The principal change in recent years was to allow them on lots of four acres instead of requiring ten acres.

Creating a new zone is a discretionary act by the Town Board. If the Board chooses not to entertain a requested rezone, there is nothing an applicant can do. In other words, the Town cannot be sued in court.
The proposed change is not only about the Vizioli property. It affects all properties zoned R-30 that are greater than 20 acres on a state road. Thus, the Elmwood Country Club Property across from the Vizioli properly on Dobbs Ferry Road and the Knollwood Country Club property on Knollwood Road would also be able to request special permits if the code amendment is approved. Furthermore, if this code amendment is approved by the Town Board properties that are not 20 acres or are not located on a state road could seek variances from those provisions. Sunningdale Country Club on Underhill Road is a good example, though it is more than 20 acres in size. As an example, Mr. Steinmetz was successful in getting a code change to permit assisted living facilities (Brightview) on properties of four acres or more located within 200 feet of a state road.

I attended and spoke at the April 8, 2015 Town Council meeting. I was present for the entire meeting, which lasted for over 3 hours. During the public comment portion the ONLY people to speak IN FAVOR of Game-On were soccer coaches from Tarrytown!

As President of your Hartsdale Park Civic Association I am urging you to contact Supervisor Feiner and the Town Council Members immediately if you object to Game-On’s request for this “special consideration.”

Game-On is welcome to come to Greenburgh, BUT NOT on Dobbs Ferry Road. There are many other sites, including several in Tarrytown, already zoned for commercial use where this type of facility is more appropriate. We say, “Game-On please GO THERE!”

Here are the Town Officials’ email addresses for your convenience:
Supervisor Paul Feiner - pfeiner@greenburghny.com
Town Council Members: 
Kevin Morgan - kmorgan@greenburghny.com, 
Ken Jones - kjones@greenburghny.com, 
Francis Sheehan - fsheehan@greenburghny.com, 
Diana Juettner - djuettner@greenburghny.com

This is an extremely important matter to all of us. Your support is needed and much appreciated.

Yours sincerely,
Celia P. Novo, President
Hartsdale Park Civic Association

A Letter To The Planning Board

Former Justice and Attorney Herb Rosenberg recently sent a letter to the Planning Board and its members discussing why the Zoning Change proposal, veiled as the "GameOn 365 proposal" on the Visioli's Golf Driving Range property, is wrong for the Town, our residents, unfairly represented, and in our view, seemingly a done-deal. ABG believes it is a done-deal for several reasons. A) Mr Feiner has continually stumped for GameOn 365 amidst a 5-year public outcry against the proposal. B) Mr Feiner has attempted to violate the law to help these outsiders and ignore and disrespect the residents throughout the Town. C) Mr Feiner has adopted and used often his newest catch phrase, which is that people should have, "confidence in the process" (they don't); and finally, we believe Mr Feiner instructed Messrs. Morgan and Jones to tow his line or be "Sonya'd". Councilpersons Juettner and Sheehan are against the proposal for numerous reasons which we'll get into in another article. 

Here is Justice Rosenberg's unedited letter:

6/4/2015 12:14:15 P.M. Eastern Daylight Time
Subj: Game On/Planning Board

To the Planning Board

My name is Herbert Rosenberg. I am retired lawyer and a former judge. I am a stranger to you all except to Fran McLaughlin, who I have met before and we have had some limited contact. You may recall an Op-Ed article that I wrote that was published in the Scarsdale Inquirer on April 17, with the title A GameOn 365's plans set a dangerous precedent in town of Greenburgh, (the title was written by the editor, not by me, though I agree with it).

I attended last evening's Planning Board meeting because I am interested in the Game On matter. Please don't take this personally, but I was quite astonished and disappointed at what I saw. This long letter will explain why.

Let me put aside the question of whether there should or should not have been a pre-submission conference on the Game On application. What I am saying is that what took place was the wrong discussion. The application is for a zoning change to Code section 285-11 that cuts across all of unincorporated Greenburgh, yet the proposed zoning change was not discussed at all. What is not before you is the approval of the Game On project (which would be a site plan approval) and such an approval can be considered only if and after a zoning change is adopted, yet the Game On project was the only thing that was discussed.
 
This is what happened.

1. Mr. Steinmetz and his colleagues presented an extensive and detailed description of the proposed Game On business. It took more than one hour. As one would have expected, he painted a glowing picture, with much overstatement of what will actually happen there, some attractive photos of the site and films of traffic movements that were quite unreal, and with no mention of the weaknesses and problems that will occur at the site and affect the neighboring communities. He even made an incorrect statement on an important point. One Planning Board member asked whether Game On had considered another location, and Mr. Steinmetz answered that there is no other available site in Greenburgh. That is not true. Landmark at Eastview has made it plain that they would like to have a recreational facility such as a sports facility at its site, and Landmark is in Greenburgh. Mr. Steinmetz spent about fifteen seconds on the subject of the zoning change, making the short statement that if the zoning application is adopted, it will also include the Elmwood Country Club and the Knollwood Country Club.
 
2. Several members of the Planning Board asked some questions about the project, how could it be made better for local kids and seniors, whether another site had been considered, etc. Not a single question was asked about the zoning change and its consequences and effect upon the rest of unincorporated Greenburgh.
 
3. At the end one community resident was given a very short time to speak -- not at all sufficient to discuss the issues involved.

But there is an overriding question, and that has to be addressed and answered before the Game On project can be considered. That overriding question is whether there should be a zoning change that would permit commercial uses on all R-30 residential districts that fit the specifications -- not less than 20 acres, with 400 feet frontage, on a state road. It is the overriding question because the proposed zoning change is not limited to the Dobbs Ferry Road site, but applies to many other areas of unincorporated Greenburgh. And it is the overriding question because the Planning Board has to first conclude that such an unincorporated area-wide zoning change is desirable for the Town before it can consider whether the Game On project is a good one. Indeed, even if the Game On proposed project were not controversial, the question of whether to change a zoning change that applies to all R-30 zones in unincorporated Greenburgh would have to be considered.
 
What surprised me last evening was that no member of the Planning Board asked any question about this zoning change. All the questions were about the Game On project. I commend Mr. Steinmetz for his skill in focusing complete attention on the project to the exclusion of the zoning change issue. His presentation was so well done that to the listeners in the audience it seemed that the Planning Board was unaware of the fact that this hearing involved an unincorporated area-wide zoning change rather than a site plan review of the Game On project. Had Mr. Steinmetz and his colleagues not taken up almost all the available time, and had some members of the group opposing the zoning change been permitted to speak, the zoning change would have been introduced and discussed, to the benefit of the Planning Board.

Mr. Steinmetz asked you for an indication of how the Planning Board was leaning. He said, or indicated, that if the Planning Board is negative, then he and his client would not waste the large sum of money incurred in doing all the environmental and related work. (Similarly, the Town would be spared the significant expenses that are involved in continuing the exploration of this zoning change.) I think that it is fair to say that the comments of the Planning Board members strongly communicated to the listeners that with few tweaks the Game On project will be approved, almost as though there was no zoning issue at all. By the Planning Board not even discussing the proposed zoning change Mr. Steinmetz is entitled to presume that zoning will not be an issue or a deterrent, and so both Mr. Steinmetz and his client will incur heavy costs proceeding with the effort, and so will the Town.

Is that really the message that the Planning Board wants to convey? Have you already concluded that the zoning change will not be an issue and does not need to be discussed? Have you concluded that other R-30 zones will not be subject to the possibility, perhaps likelihood, of commercial uses? That other R-30 districts, and R-40 districts, will not be added to the list of eligible sites for commercial use by variances regarding size and other business uses? Mr. Steinmetz mentioned the Elmwood and Knollwood Country Clubs, but he gave more away -- in a letter to the Town Board dated May 21, 2015, relating to abutter petitions, he raised the possibility that Ato the extent that parcels can be assembled in the R-30 District that satisfy the locational criteria of the draft Zoning Text..."a such assembled parcels would be free to introduce commercial uses under the zoning change." Mr. Steinmetz knows, but he is not telling you, that the possibility of commercial uses being introduced to R-30 one-family districts goes far beyond Elmwood and Knollwood Country Clubs. Real estate developers are not shy or timid.

If you have already concluded that the zoning change will not be an issue that has to be addressed and considered then what you did last evening was alright. I don't think that you have reached that conclusion, but in all fairness you have given that impression. If Game On believes that you have reached that conclusion, as they have good reason to assume, then you have to correct that assumption. You need to do it so that Game On, and also the Town, do not incur the large expenses that are inherent in the application.
 
I suggest that the way to do it is to notify Game On that at the next meeting of the Planning Board you would like them to attend and discuss the zoning issue, and that you permit some comments by persons who are knowledgeable and who oppose the zoning change. I believe that this is the only way now to be fair to all the parties who have an interest, and also to the Town of Greenburgh.
 
I should add that the change of zoning, unlike the Game On project, involves policy and not facts. Hence, if you decide not to change the zoning, you can make that decision without hearings, studies, etc. It is what courts call a question of law, not a question of facts, and thus needs no hearings. It enables you to conclude, if you wish, the matter without having to consider the Game On project -- unless, of course, Game On decides to build its project elsewhere in Greenburgh, as it can if it chooses to do so.

Sincerely,
Herbert Rosenberg