The Town Board thus far shows no sign of backing down from a proposal comdemned by civic leaders as unlawful to charge civic associations retroactively for seeking to uphold the Town’s zoning code by demanding that the Edgemont Community Council pay another $400 on top of a $500 fee that unincorporated area civic leaders say the ECC was improperly charged in the first place.
A proposal to impose these fees, first introduced last month, but twice taken off the agenda by Town Supervisor Paul Feiner after civic leaders protested that the proposal was malicious, spiteful and, because it was being proposed retroactively – without prior notice – unlawful, is back on the town board agenda for Wednesday night’s meeting, without a single word having been changed from when Mr. Feiner took it off the agenda two weeks ago.
Civic leaders say town leaders want to use the measure to punish civic groups like the ECC and the Council of Greenburgh Civic Associations for taking an active interest in the Town’s handling of important land use projects that town officials want to approve — even though such projects might not be in compliance with the Town’s zoning laws, and such noncompliance could lead to huge costs to taxpayers down the road.
They say that even though town officials have been presented with legal authority showing the Town’s retroactive fee proposal violates case law and an opinion of the State Comptroller, neither Mr. Feiner nor any other member of the town board has bothered to discuss the measure publicly.
Nor has Mr. Feiner or any other member of the town board even bothered reaching out to civic leaders to discuss the matter.
Instead, town officials are apparently hoping that the public Wednesday night will be distracted by another controversial land use matter – one that this time town officials actually oppose — thereby allowing the punitive fee measure to be approved.
Thus, town officials expect a capacity crowd of residents Wednesday to protest a proposal to build 272 rental apartment on the former Akzo Nobel site on Lawrence Street off Saw Mill River Road in the unincorporated area of Ardsley.
By contrast, the land use proposal that prompted town officials to propose levying huge fees on civic groups that seek to uphold the Town’s zoning code is an 80-bed assisted living facility proposed for the Sprainbrook Nursery property. While town officials have said they intend to keep an “open mind” on whether to approve the project, they’ve made no secret of their desire to give approval because of the tax revenues they think the project will generate.
Most of the Sprainbrook site is in the Edgemont School District, but some of it is also in the Ardsley School District, and the homeowners on Deer Hill Lane whose properties abut the site all live in the Ardsley district.
Civic leaders say the building inspector misinterpreted the Town’s zoning code when he held last summer that the assisted living facility does not need zoning variances, even though the site does not meet the minimum required land of four acres and is nearly a mile from the nearest state or county right-of-way. The zoning law requires that, for easy access by emergency medical vehicles, the site must be within 200 feet of a state of county right of way.
Unlike the assisted living project, town officials have publicly proclaimed their opposition to the Akso Nobel multifamily housing project. For that reason, civic leaders expect town officials to pander to the crowd Wednesday night, as they try to dream up new and inventive ways to try to block the housing project, make it as expensive as possible for the developer to build, and impose costly delays.
At the same time, civic leaders say they fear that once the public hearing on the housing project is over, and the Ardsley residents opposed to it leave the room, town officials will use Wednesday night’s meeting to quietly exact retribution against civic groups seeking to enforce the Town’s zoning law in connection with the assisted living project.
Because the assisted living facility is expected to have adverse impacts not just in Edgemont, but also in the unincorporated area of Ardsley, and because Town officials, starting with Mr. Feiner have thus far thumbed their noses at the Town’s civic groups, civic leaders are considering distributing flyers to everyone attending Wednesday night’s hearing so that they will know first hand that town officials are planning that night to punish civic groups that, in the interest of enforcing the Town’s zoning laws, may from time to time oppose land use projects that Town officials want to see built.
They will explain to those attending Wednesday that civic associations who seek to enforce the Town’s zoning laws are volunteers with no financial stake in the proposals under consideration, that for that reason, the Town has for decades exempted civic associations from having to pay fees when they seek to challenge the building inspector’s interpretation of the zoning laws, that the Town last summer refused to allow a challenge to be filed by the ECC and the CGCA unless a $500 fee was paid, that town leaders, when confronted with the Town’s own regulations which said no fees were to be paid, initially promised to refund the money, and then, four months later, proposed to levy charges retroactively to December 23, 2008.
The flyers will explain to those expected to attend the hearing Wednesday night that most civic associations in unincorporated Greenburgh do not have the funds to launch these challenges, and that by levying these new fees, and doing so retroactively to boot, town officials are seeking to silence, deliberately, the one independent voice in Greenburgh that looks out not for the developers, but for the interests of all taxpayers.
“Town officials want to charge civic groups seeking to uphold the Town’s zoning law a fee of $6 per page of hearing transcript they haven’t even asked for, when in the past, if civic leaders want to see a copy, the Town would charge them only 25 cents per page,” said ECC president Bob Bernstein.
“This is just another case of a spiteful town government attempting to retaliate against and intimidate citizens of this Town who are simply asking as volunteers that the Town comply with its own laws. Law abiding residents of Greenburgh should be appalled by such bullying behavior,” he added.
Town officials meanwhile say they are merely trying to protect Greenburgh taxpayers from having to foot the costs of an appeal which might cost the Town several hundred dollars in out-of-pocket costs.
To place the cost in perspective, the Town has an annual budget of nearly $80 million; the building department alone expects to generate at least $5 million in revenue for 2016, and Edgemont taxpayers already pay the Town nearly $14 million annually in property taxes.
The fees the Town proposes to charge civic groups, both retroactively and prospectively, exceed what it costs to file an Article 78 proceeding in New York State Supreme Court.
The ECC and CGCA’s appeal was to the Zoning Board of Appeals, which is required by law to review appeals of interpretations of the zoning law by the building inspector. But the town attorney’s office instructed the secretary to the Zoning Board that no appeal could be filed by the civic associations without first paying a $500 fee.
Since 1976, the Town’s Zoning Board of Appeals, which hears all such challenges, has expressly exempted civic associations appealing building inspector rulings from having to pay any such fees.
The rule states, “No fee shall be required for any application or appeal made by a bona fide civic association of the Town or by any officer, department, board or bureau of the Town.”
The fee proposal on Wednesday’s agenda tries to deal with criticism that retroactive application of the proposal was unlawful by pointing out that there had been “at least” one prior instance since December 23, 2008 when a civic association was charged filing fees for having appealed a building inspector’s interpretation of the zoning law.
But at the December 16 meeting, when the revised measure was first proposed, Mr. Bernstein said that the one prior instance where a civic association was charged the fee was not a precedent that would ever justify retroactive application of an otherwise unlawful fee.
To the contrary, he said the fee in that case was imposed in order to retaliate against the Fulton Park Civic Association, which was appealing from the building inspector’s interpretation of the zoning code with respect to an application to build a housing project in their neighborhood that town officials wanted built.
“Not only did the Town impose an unlawful fee,” Mr. Bernstein said, “But the building inspector went after the president of the Fulton Park Civic Association personally by sending a code enforcement officer to her home for the purpose of revoking her certificate of occupancy. That’s the kind of despicable behavior one expects from playground bullies, not local public officials,” he added.
Mr. Bernstein said a building permit had been issued several years before for a renovation on the civic leader’s home, but that the Town’s building department staff had failed to conduct the required inspection after the renovation had been completed, and everyone forgot about it – that is, until the civic leader filed an appeal of the building inspector’s interpretation of the building code.
Mr. Bernstein said he represented the civic leader in court and succeeded in getting the charges against her resolved, but believed the situation was a clear case of over-eager retaliation by town officials who “openly mocked” the civic leader when she entered Town Hall after she filed the appeal. He called it “a sad chapter in the Town’s history” and “certainly not one town officials today would ever want to cite to justify any action on their part.”
Mr. Feiner apparently agreed. Immediately after Mr. Bernstein spoke, Mr. Feiner announced he was pulling the matter off the Town’s December 16 agenda.
But town officials were not done.
Two weeks later, on December 30, 2015, Mr. Bernstein was notified in writing that the Town was now demanding payment of an additional $400 to cover the costs of the Town’s legal notice and for what it says is one half the cost of the Town’s typewritten transcript of the public hearing.
Even though the ECC has not asked for a copy, the Town is charging the ECC a total of $6 per page for each page of hearing transcript.
Under the prior rules, if the ECC had wanted to see a written transcript, it would have had to file a Freedom of Information Law request and pay the Town the required fee of 25 cents per page.
But Mr. Bernstein said if the Town proceeds to apply its new rules retroactively, the Town will once again be acting unlawfully.
“It used to be said that Mr. Feiner didn’t care if he was accused of acting unlawfully, that he actually taunted his opponents and told them to “sue him” if they didn’t like what he was doing, and many of them have,” Mr. Bernstein said.
“But after Fortress Bible and a string of other losses in one court after another, I believe Mr. Feiner and other town officials should sincerely want to avoid needless legal strife and try instead to work constructively with the Town’s civic leaders who, after all, are just volunteers looking for the Town to do the right thing,” he added.
“Maybe, instead of starting off 2016 on such a sour note, the Town will reconsider and work with us, instead of against us. I certainly hope so.”
“In the meantime, residents of the Ardsley School District attending Wednesday night’s hearing should be aware of what their town officials are doing, because any attempt to extinguish the rights of civic groups in unincorporated Greenburgh will extinguish their rights too,” Mr. Bernstein said.