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