Letter to the Editor—Chappaqua Crossing FEIS: Compromise or Concession?
April 1, 2011
With 13 comments since publication Friday
by Rob Greenstein
Dear Editor,
Under the “Modified Project” proposal for development at the former Reader’s Digest property, Summit Greenfield wants to rezone 60 acres of commercial property to build 199 residential units. These housing units would be divided between two residential clusters, which are called the East Village (111 units) and North Village (88 units). Both clusters would fall within a single 60-acre Multifamily Planned Development District (“MFPD”).
The big news with the recently released FEIS is that the town board is separating the East and North Village residential clusters into two separate MFPD applications, instead of one. This approach enables the town board to deny one MFPD, while approving the other. In fact, there are clues in the FEIS that the board may very well do that.
The FEIS demonstrates a clear preference to deny the North Village MFPD. It characterizes the two 55-foot apartment buildings of the North Village as “not consistent with the character of the neighboring residential community.” The FEIS notes that the North Village, as opposed to the East Village, is closer to the existing office buildings on the site. And, significantly, the board seems to want to maintain the 257 parking spaces in the North Village for the future tenants of the existing commercial office buildings rather than see them displaced by residential development.
The FEIS also demonstrates a clear preference to approve the East Village MFPD. The East Village MFPD would have 111 units. This would include three buildings with 51 condo units, of which 20 would be affordable housing units, and 60 fee simple townhouses. These 111 housing units shown mapped in the East Village could be further reduced to 79 units, which is the number of units that sit in the existing sewer district. The other 32 units are outside the defined sewer district. This approach would not affect the affordable housing units since they appear, on the map of the Modified Project, to be within the current sewer district.
Denying the MFPD in the North Village and granting the MFPD zoning in the East Village could be viewed as a reasonable compromise. This would enable the board at least to effectively limit the residential development to the East Village, thereby preserving the viability of the town’s last large commercial property in the North Village. And it could be viewed as a reasonable compromise to those who, like the town board members, are reluctant to pass up the opportunity to obtain the 20 units of affordable housing that happen to be mapped by the developer as 20 units in one building in the East Village.
Continuing concerns about allowing any residential at Chappaqua Crossing
But, by the town’s own MFPD standards, the Reader’s Digest property is not an appropriate site for multifamily residential development due to its distance from services, shopping and public transportation and its lack of sewers, which only cover a portion of the East Village. And by allowing even a limited amount of MFPD in the East Village the Board may be opening the door to an endless legal battle in which Summit Greenfield will seek to transform more of the commercial property into residential.
This could happen in either (or both) of two ways:
1) Summit Greenfield may continue to press to obtain MFPD zoning for North Village. After all, Summit Greenfield might argue, the town has already permitted MFPD zoning in the East Village and notice that in the FEIS, in its criticism of the North Village, the board does not actually say that the North Village is inappropriate for residential MFPD zoning. It says, rather, that it disapproves of the height of the buildings there, and prefers to keep the space open to accommodate the parking needs of a growing commercial tenant body. A door left open there.
2) Even if the town board limits the MFPD to the East Village, Summit Greenfield may press its right to density bonuses entitling the developer to double the number of units applied for. Another door left open.
Concern about the continuing threat of density bonuses
The FEIS makes clear that the density bonuses that Summit Greenfield could call upon to double the amount of residential have not been a part of the exhaustive environmental review just completed. The FEIS also makes clear that Summit Greenfield would have to undergo another environmental review for such added density. But still those density bonuses are, in theory, alive and well.
These density bonuses derive from several project features of the plans by Summit Greenfield such as affordable housing, underground parking and open space preservation. The developer has claimed that he could call upon them in the original proposal for 348 units of housing as well as in the application for 278 units. And although Summit Greenfield hasn’t mentioned them lately, they exist.
The Town Board’s assumption seems to be that since these density bonuses have not been considered in the current, now final, FEIS, a developer would be reluctant to undertake another SEQR review that a proposal for increased density would require. But Summit Greenfield has already shown a willingness to do anything necessary to carry out its plan to squeeze out the town’s last large commercial property and squeeze in as dense a residential development as they possibly can.
And once an MFPD is approved, even if limited to the East Village, it would necessarily carry with it the admission that the Reader’s Digest site is appropriate for a MFPD, which it is not. Having achieved that feat, in contradiction of the town’s master plan, the developer could then feel free to pursue a long-term siege to fully exploit the residential capacity of the property, with density bonuses that entitle Summit Greenfield to double the number of units proposed. And now that the lawsuit is on, who knows what that number may be? Do we really want to undergo another SEQR process and endless legal challenges down the road?
Is this “compromise” the beginning of a never-ending struggle?
For those of us who intend to remain residents and to continue to send our children to Chappaqua schools, there is deep concern that what might seem to the board a fair compromise, some limited multifamily residential zoning, is really the start of a never-ending struggle in which the developer will seek constantly to replace a commercial property’s lower return-on-investment with a higher return-on-investment of medium or high density multifamily residential development. This would undercut the commercial viability of the property that our town desperately needs to sustain its government and schools.
While this may seem to the board and community to be a reasonable compromise, it may actually be a dangerous concession. Unless the board has clear written legal advice that a compromise to approve even limited multifamily zoning is not a material concession of the town’s right to enforce the current office zoning, then this may turn out to be a much regretted decision in the future. The safest position for the town board is to deny MFPD zoning in the both the North and East Village.
Now that the town board has approved its final environmental impact statement, its review process is very close to an end. The town board has 30 days to issue a Findings Statement indicating what development it will allow at Chappaqua Crossing. After one last public hearing on April 11, the town board will also vote on the zoning amendment changes proposed by Summit Greenfield. The two additional amendments to the Town Code – the MFPD in the North Village and the East Village – will now be considered at the public hearing Monday, April 11. The town board has taken pains to hold the public hearings until the finished FEIS, which is now posted on the town website, could be made public. The Executive Summary of Volume I will give you a good overview of the issues.
Come to the hearing and have your say.
Rob Greenstein
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To review the subjects of the five original hearings, click HERE.
To view NCNOW’s archived articles and letters—in chronological order, newest to oldest—on Chappaqua Crossing and Summit Greenfield’s application for a zoning change, click HERE.
Sometimes compromise is the right course of action. But sometimes doing what is right regardless of the consequences is the right thing to do too. This is a case of the latter, not former.
I will not be surprised, but I will be extremely disappointed in our town board if they compromise away this town’s finances and character to appease the bullies that are Summit Greenfield.
Rob’s letter makes excellent points about what the unintended consequences could be of trying to offer a compromise. SG has repeatedly said that they intend to proceed with their litigation against the Town and the Town Board Members no matter what the vote.
Also, one point that I was disappointed to see was not addressed in the FEIS(at least I could not find it) was the matter of Summit Greenfield’s statements that the only way they would be able to provide for the inclusion of affordable housing in their proposal was by subsidizing it from the expected profits of their full build of market rate units. The FEIS does not as far as I can tell address in any respect this issue or the matter of how the affordable units would be financially supported in the future even if SG did somehow build them now.
Similarly the FEIS does nothing to address the impact on the commercial space of SG’s claim that it would not be able to fund the work it claims is necessary to update the commercial space to make it rentable until it has the profits in hand from having built and sold all of their residences.
It seems that the splitting, with approval of Floating Multi Family at Reader’s Digest, given these facts, really is likely to lead to SG returning to claim they could not rent the commercial space and the Town has already said that RD is suitable for residential multi-family floating and trying again and again until they get what they want.
Gerrard is a politician to her core and will do what is in her best political interests.
There have been many posts at this site making well reasoned arguments as to why any residential would be a mistake. These posts are based on NYS law; they are not simply the personal view of the posters. The gist of the posts is that once a board allows a 100% non-residential property to be “somewhat” residential, the ground to oppose a continuing movement towards all residential slips away as the developer pushes towards that goal. It makes sense to me based on the arguments I have seen. So, I too will be extremely disappointed if the board allows any residential to happen. If that is the way things are going to end up, we are entitled to have the board explain, based on the laws and cases, why the prospect of continuing fights with the developer is not a major concern and what will stop the development from continuing to grow. Board, do you have a written opinion of experienced counsel? Please share your thoughts.
I believe that the condos even at 50 feet are too tall for our current fire trucks. Does that mean we will have to buy a new truck to meet the needs of this development? Does that also mean we will have to build a fire truck bay for the new larger truck since the current fire houses are not big enough for a larger truck? A truck and a building is a whole lot of money$$$$$. What is to be done about this one small aspect of this development? Don’t count on Mt. Kisco to service this area!
I am completely mystified why this property is thought to be suitable for affordable housing. It is way too far from transportation and services. It simply does not qualify as a site for affordable housing. Also, there is no guarantee ANY of such housing will EVER be built. It is only a POSSIBILITY, SG itself states that. Why does the board continue to talk of affordable housing there? Can anyone explain?
Passing a law to allow a portion of the residential to be built will open the town up to the claim that (1) it can no longer claim that building residential would be a negative change in the essential character of the neighborhood because if it were, the town would have said no to any residential and not passed a law allowing some; and (2) the town is acting arbitrarily by putting something in effect just to deal specifically with CC.Right now, the town can say residential is simply out of character with that spot and wrong for a long list of reasons; and the law are the laws and have been for quite some time. Nothing arbitrary here. That all goes out the window if the town decides some residential is okay. Then SG will fight until the end to get more residential because it stands to make tens of millions of dollars by building a big development.That’s right, tens of millions. The writing is on the wall here.
Months ago there was talk about a petition by surrounding property owners - including the school district - that would require four board members’ votes to approve any zoning changes at Chappaqua Crossing. There are only three board members now who vote on Chappaqua Crossing-related matters.
Is the petition going forward? When is the deadline for presenting it?
I see these as the questions that need answering by the board:
(I have postd them also following the article on the town board’s adoption of the FEIS)
1. The RD property does not meet MFPD requirements, mainly on account of:
a. lack of sewers (though there is one area covered by sewers - PART of the East Village, none of the North Village) and
b. it is not near shopping and train transportation
2. The fact that the developer has included 20 affordable units in a plan of 199 housing units still does not make the site appropriate for MFPD in the first place - unless he creates a third hamlet at RD with shopping.
3. So if we create an MFPD zone even on part of the property because we want the 20 affordable units (although we have no idea what that number will be if there’s no North Village in the picture - the developer might say he can afford to make only ten or five or no affordable units if limited to the sewered part of the East Village) don’t we open the entire property up to MFPD (yes yes with another NYS environmental review to precede it) if sewers should ever come along?
4. If sewers ever come along, won’t the developer naturally come back with MFPD requests that make use of the aforementioned density bonuses - doubling whatever would ordinarily be allowed?
5. And won’t it then be impossible to prevent him from “sacrificing” the commercial operation and its parking needs to the higher return-on-investment of residential MFPD?
Agree wholeheartedly with Steve Swirsky and others above. If partial residential is allowed, ity cannot be a good thing as it will lead to a much bigger development before a few years have passed. SG will not market the commercial side in good faith and then will come back saying it can’t get a reasonable return and it wants more residential. Then it will go to court if the town does not agree, arguing that, “see, there is no real harm from residential at that site because the town already decided that by allowing a significant number to be built.” This is all obvious, common sense, conclusions.Is there ever going to be a Q and A with the board on this so that we can ask why they think that won’t happen?
Concession.,,No compromising with the developer.They have repeatedly lied and are continuing to lie.This is their own fault.But it is all part of the plan.By suing they are scaring the board into a concession.So for the developer, mission accomplished.Now all they have to do is wait for some residential,then a few years from now, sue for more residential and more after that.Good luck to us all.This is and has been the plan once they realized they could not get the big plan they wanted at first.Go step by step.Eventually they will get it all if the board gives the go ahead now for any residential.Anyone in their business can see this is what they are doing.
Status report, to answer your question, the petition you are referring to was signed in accordance with Town Law §265, which is a state statute. The homeowners adjacent to the property - including the School Board - signed this 265 Petition. If filed, it would require the rezoning application to be approved by a “super-majority” of the Town Board.
A super-majority of the Town Board would mean 4 votes. The current Town Board would not be able to approve the Chappaqua Crossing rezoning application with a super-majority since 2 Town Board members have recused themselves. One member of the Board, Elise Mottel, recused herself because of legal ethical concerns brought about by her firm which had an attorney client relationship with the Schaumberg firm. Another member of the Board, John Buckley, recused himself because of acknowledged financial conflicts
Accordingly, any vote on the rezoning application would have to await the availability of a 4th board member who does not have a conflict of interest. The next election is in November, only 7 months away. Three out of five board members are up for re-election. These board members are Barbara Gerrard, Elise Mottel and Mike Wolfensohn.
To answer your 2nd question, the 265 Petition must be filed before the Town Board votes on the proposed zoning amendments.
No one disputes that the RD rezoning will significantly impact the Town for generations. As such, it is entirely appropriate that a decision this important be put to a super-majority vote. The Board should not approve a MFPD in an area that doesn’t meet the requirements. Once they approve an MFPD, game over, SG wins. We will be embroiled in endless legal battles as SG, or any developer, expends the MFPD thst was foolishly handed to them by the current town board. The current Board should not take any action that would cause irreparable harm, by altering the look and feel of our community in direct contradiction to the intent of the master plan to preserve the commercial viability of the Reader’s Digest property.
This issue should be openly debated, and the residents should be entitled to vote for 3 out of 5 board members based on their position. The residents should be entitled to vote for members who are willing to make a decision that is best for our long term interests.
We, as their constituency, are entitled to know why the board thinks this will not become a never ending set of lawsuits from the developer trying to expand the residential. I ask the board for transparency on this crucial issue. We are paying the lawyers who have looked at it and it is only right that we be told the reasoning. Then we can make our own determinations. Not relating that explanation only makes matters worse and is simply not right. We are entitled to know.
Rob, how does the board make four or five members to vote when only three remain? Does this mean the board has to bring back Mottel and/or Buckley to make a supermajority? Otherwise, how can this ever end?
Do they happen to be up for election in Nov?
If the petition is filed, the board does not have to bring back Mottel and/or Buckley to make a supermajority.
The Town Board may, however, attempt to invoke something called “the Rule of Necessity” in order to allow both members who previously recused themselves to vote on the developer’s proposal, notwithstanding the ethical concerns and financial conflicts.
I do not think the Rule of Necessity should be invoked. Legally speaking, there is no obligation upon the Town Board to take such an unprecedented and untenable measure. New York courts have held that a town board is not legally obligated to vote on every request for a zoning change. This is an issue that lies within their legislative prerogative and discretion. Accordingly, there is no necessity or deadlock that could justify allowing board members with admitted ethical concerns and financial conflicts to vote on the developer’s rezoning request.
Furthermore, as residents, we deserve better from our Town Board. Our Town Board should respect the rights of residents, including those who signed the petition, to have the developer’s proposal evaluated by board members who do not have conflicts of interest. Hopefully, the Town Board’s sense of integrity will prevail.
And to answer your second question, one of the recused members - Elise Mottel - is up for relection in November.
Concession. A major future problem in the works. This will never end with SG. I wish I knew the reasoning behind it rather than having to speculate.
Imagine this scene: The first court appearance in the Chappaqua Crossing case, when SG’s counsel begins by saying:
“Good morning, Your Honor. Now that the Town of New Castle has granted, in part, the MFPD zoning change we requested, it has been conceded by the Town that my client’s property is appropriate for multifamily zoning. The sole remaining question for this court is whether to order the Town to grant my client the full density bonuses to which he is entitled, that is, 556 condominium units.”
“Further, as the court is aware, those units are not, as a matter of law, required to be Fee Simple, rather, there is ample precedent within the Town for construction of condominium units, and to require my client to develop only Fee Simple units would be manifestly discriminatory.”
Then the whispered discussion in the hallway outside the courtroom between the Town Supervisor and its litigation counsel which might sound like this:
Litigation counsel: “We’ve got a good case, as we’ve already told you. But we can’t be sure the judge will go our way on this one. Maybe it’s time to think about settling. 556 condominium units would be devastating. Why not just go back and offer the developer’s initial proposal for 278?”
Supervisor: “That’s ridiculous. We spent years studying the proposal and we know that 278 could have a terrible effect on town services, schools and traffic.
Litigation counsel: “But it’s still a lot less than 556. Just tell me you’ll consider it.”
Supervisor: “I don’t like it, but guess I’ll have to talk to the other board members. Maybe we can bargain him down to 278.”
Yes, “Imagine” I hate to think about the future but that dialogue has a definite ring of truth about it. But, of course, after the 278, then more condos will come because at that point, the commercial will truly be unprofitable. Case over.
