NEW: Letter to the Editor: Come March 22 to object to ANY residential development at Chapp Xing
Monday, March 21, 2011
by Rob Greenstein
Dear Editor,
It is clear to most observers that unless the New Castle Town Board capitulated to each and every one of Summit Greenfield’s demands, it was inevitable that we were heading to court. And although the initial lawsuits came sooner than many expected (see “No surprises in Chappaqua Xing lawsuits, except for odd timing,” NCNOW.org, March 1, 2011), the town board must continue not to do or say anything that compromises the environmental review process. The town board must continue to conscientiously follow the process mandated by the NY State Environmental Quality Review Act (“SEQRA”): the town board must adopt a Final Environmental Impact Statement (“FEIS”), adopt the Finding Statement and then decide on the five proposed zoning amendments.
The public hearing scheduled for Tuesday, March 22 at 7:45 p.m. in New Castle Town Hall will be an opportunity to comment on the five proposed zoning amendments. (See “Town board sets March 22 hearing for changes in town law proposed by Summit Greenfield,” NCNOW.org, February 25, 2011.) The most controversial of the proposed amendments is a change in the town development plan map and the town’s zoning to create a multifamily planned development zone (“MFPD”) at Chappaqua Crossing. Summit Greenfield needs this residential rezoning in order to construct 199 units of housing.
Town board’s decision must be based on administrative record and findings
Most residents appear to be opposed to residential rezoning at Chappaqua Crossing. And with an election only months away, with three out of five Board Members up for re-election, including Town Supervisor Barbara Gerrard, board members would likely want to make a decision that would be well-received by their constituents.
However, the town board cannot make a decision based solely on general public opposition. It is well settled law that local public opposition is an improper ground for a local authority to rely on in refusing to grant an application of approval. Bongiorno v. Planning Board of the Incorporated Village of Bellport, 143 A.D.2d 967, 968, 533 N.Y.S.2d 631, 632 (2d Dep’t 1988). This principal of law applies in many situations including when a board is making a determination regarding whether to grant or deny certain applications. Pleasant Valley Home Constr., Ltd. v. Van Wagner, 41 N.Y.2d 1028, 1029, 395 N.Y.S.2d 631, 632 (1977); see Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 665 N.Y.S.2d 627, 628 (1997) (board may not base its decision to issue a special permit on generalized community objections); Exxon Corp. v. Restiano, 237 A.D.2d 356, 655 N.Y.S.2d 439 (2d Dep’t 1997) (town board’s decision was impermissibly based on generalized objections and concerns expressed by the community); Markowitz v. Town Board of the Town of Oyster Bay, 200 A.D.2d 673, 675, 606 N.Y.S.2d 705, 707 (2d Dep’t 1994) (board’s determination was impermissibly based upon the generalized, and ultimately refuted, objections expressed by members of a nearby residential neighborhood).
The town board must base its decision on the Administrative Record and the Finding Statement. The public hearing scheduled for Tuesday, March 22 will be an opportunity to ensure that concerns previously expressed, including the ones listed below, are part of the Administrative record.
Reasons to deny the application for an MFPD at Chappaqua Crossing
(1) An urban use in a non-urban area including two five-story apartment buildings in the heart of our community.
(2) A project that is not consistent with the surrounding density, open space, architecture and rural atmosphere of our neighborhoods as set forth in the Town Development Plan.
(3) A project that will result in negative tax revenue for the town and school district.
(4) A project with serious risks to the Chappaqua Central School District.
(5) A project that doesn’t meet the criteria for creating a multi-family planned development (MFPD) zone
(6) A project that doesn’t meet the criteria for affordable housing and provides no guarantee that the affordable units will ever be built.
(7) A project with a negative impact on traffic and emergency response time and emergency evacuation in an area that already has traffic congestion.
(8) A project with a deficient parking management plan.
(9) A project that that requires a sewer district extension while other communities in New Castle have been waiting years for sewer access.
The dangers of approving some residential development at Chappaqua Crossing
My biggest concern is that if the town board approves some residential development at Chappaqua Crossing, once the residential door is opened, this developer, or another developer down the road, would continually attempt to obtain more residential because of its greater profitability. At some point in the future, a developer could seek the density bonuses to which Summit Greenfield claims they are entitled - 556 residential units! And once some residential zoning is in place, would a developer be in a stronger position to claim these density bonuses?
With every addition of housing to the property, the commercial operation loses viability. Residential will crowd out commercial, a result that has the potential to benefit the developer enormously at the profound expense to town and school district taxpayers.
This dense residential development will be an impediment to the commercial revenues that our town desperately needs, and which are critical to the town’s economic sustainability.
The lack of commercial tax base is a major concern for our town board. The minutes of a work session of the Town Board on November 30, 2010, reveal that Supervisor Gerrard stated, “One of the major things the Town Board is concerned about is the proposed reduction in the BRO-20 zone. It is problematic because only three percent of the Town’s assessed value comes from commercial property. This comes from the Frey report, which was done in connection with revaluation. The Town is concerned with maintaining the potential for further commercial expansion down the line and how the Town protects its not so diverse tax base. Ninety-seven percent residential is regarded as unsustainable.” http://www.newcastlenow.org/images/articles2010/WorkSessionNovember30Final__2_(3).pdf
Already, for example, the developer is proposing a parking management plan that offers from the outset fewer parking spaces for the office space square footage than our town code requires, demonstrating his willingness to jeopardize the commercial side of his operation in order to load up on the residential use for which he has shown a persistent preference. (See “Open Letter to the Town Board: Chappaqua Crossing: The Stick, Carrot & Gavel,” NCNOW.org, November 30, 2010.)
Would a request for more residential trigger a new SEQRA process?
The argument in favor of allowing some residential now is that it will not open the door for more residential, since a request for more residential would most likely trigger another SEQR process, an environmental review to analyze the impacts of the additional housing. And if another SEQR process were necessary, the current exhaustive five-year SEQR process would provide the basis to deny any additional residential units.
However, it is difficult to estimate today whether another SEQRA process would be necessary. Such factors that will come into play are: How many units? What kind of housing? What was the final outcome (after litigation) of the current environmental review? Once some residential has been built, what will be known about the actual impacts from that development? What do the final zoning amendments look like? Do they allow for additional residential development?
Unless we can absolutely prevent further residential development down the road, I think opening the residential door is too risky. I will raise my concerns at Tuesday’s public hearing so my concerns become part of the Administrative Record.
Rob Greenstein
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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.
I have no doubt you will get some sort of assurance from some quarters that a “little” residential does not mean “all” residential, but the truth is there can be no “guarantee.” If a developer has the resources to go to court to seek judicial intervention, it will be a constant battle that a municipality not be able to withstand. SG has already shown its hand as to what will face this town down the road—as we have seen with its current lawsuit, SG is willing to go to court even with a wholly made up set of claims simply to intimidate the town and its residents and to create concern about how much the legal fees will be. They have done this even though the facts and law are against it. As prior posts on this site have shown, if a little residential gets in there, the facts and law start to shift in its favor and then all residential is not far behind. There are many tens of millions of dollars in potential profit for SG if it can get the 199 units (multiply $700,000 to $1 mill times the number of units less development costs) and then however many more 100s of units they can squeeze in there. That is why they are fighting so hard and exactly why they will not let anything stand in the way. They are not looking at what is good for this town and its residents.
Some of us do not wish to bear the cost of a protracted legal battle when we will end up with residential anyway. Let those who are the most vocal opponents of this pay for it and at the same time, those who are lawyers can volunteer their services.
To “the truth” -
I bet you think that school users should foot the education tab, too. And that garbage should be a matter for individual choice - separate tabs for each household?
What about pot-hole fixing? Should we do that as individuals too?
I did not make something clear before—(1) you do not HAVE to end up with residential and (2) the current nonsense lawsuit can won, maybe even on summary judgment. My prior comments were intended to make the point that the community must stand firm against residential development at RD. There are many, many credible reasons for not allowing residential on that site as listed in the post above. Given those reasons, the town is within the rights granted it under the law to deny residential for those reasons. But what it has to do is deny even partial residential. Keep it commercial. For some reason, people think that the only way there will be a lawsuit is if SG sues to get residential in there. There are plenty of residents who will sue if the town allows residential and I am not just talking about people with property next to the site. It could be those nearby property owners or any town resident or an environmental group. Such suits are very common. Another point made in prior posts is that SG will keep suing to get more and more residential even when the development gets big and then bigger until no more units can be crammed in there. That is the reality of what they are trying to do. Since there is no way at this point to prevent a lawsuit, we should do what is best for this community and keep the property all commercial. When you cannot avoid litigation, you have to assess what your strongest litigation position is and keeping it all commercial is it as many other have made clear on this site in prior posts.
MFPD: The purpose of the MFPD zoning is to provide opportunities within the town, on a planned basis, for housing of medium density and should be located within a half-mile of a business district, in reasonable proximity to shopping, services, community facilities, suitable transportation services and utilities.
DENSITY BONUS: In 1979 the town created a MFPD “special permit” to make a framework for different levels of housing density within New Castle, depending on the location of the site. The highest densities were permissible in the hamlet centers of Chappaqua and Millwood, and “as you work outward, there is a corresponding reduction in density, requiring much less land to support the MFPD in the hamlets than in the ‘hinterlands’.” At 1.2 units per acre, a condo development such as Riverwoods would be considered low density; Chappaqua Crossing is “around 3 units per acre,” Meder told board members, “making it legitimate to consider the site potentially of medium density.”
The fact that the housing is “clustered,” some parking is located underground, that affordable housing is included in the mix and that sewers are proposed would entitle the developer to exceed the normal density calculations for the size of the property. With each of its successive plans – first for 278 units and now in the current plan for 199—Summit Greenfield has claimed it could construct double the number of units by virtue of these density bonuses.
To The Truth,
There will be more legal battles down the road if the town allows some residential now. The developer has shown his hand. He will keep pushing for more and sue to get it.
Better to face him down now and end it.
I am not a lawyer so I will keep out of the legal argument. I do know that we desperately need commercial tax revenue not residential tax revenue. Our town board needs to deny this application!!!
