A month after Greenburgh’s civic leaders said a Town Board proposal to charge civic associations retroactively for appealing interpretations of the Town’s zoning code by the building inspector was malicious, spiteful and probably unlawful, town officials are now demanding that the Edgemont Community Council pay another $400 on top of a $500 fee that civic leaders say the ECC was improperly charged in the first place.
“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 who, through the Greenville Fire District, will be saddled with the burden of having to pay for emergency medical responders needed to service an assisted living facility nearly a mile from the nearest state or county right-of-way, already pay the Town nearly $14 million annually in property taxes.
The controversy began this summer when the ECC and the Council of Greenburgh Civic Associations together filed an appeal of the building inspector’s ruling that an assisted living facility proposed in a residential neighborhood in Edgemont on less than the required four acres and nearly a mile from the nearest state or county road did not need any zoning variances.
Under the Town’s zoning law, adopted nearly three years ago, assisted living facilities may be located in residential neighborhoods in unincorporated Greenburgh, provided, however, the site is at least four acres and is located “within 200 feet of a state or county right-of-way, excluding parkways and interstates.”
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.”
Last month, after promising for four months to address the matter promptly, the Town Board proposed to change the rule by requiring that “bona fide civic associations of the Town” – but not “any officer, department, board or bureau of the Town” — pay $200 to cover the Town’s cost of paying for legal notices of the appeal, plus another $200 to cover one-half of the Town’s cost of paying for a typewritten transcript of the public hearing on the ZBA appeal.
But rather than make the proposal prospective, the Town Board instead proposed that the measure be made retroactive to December 23, 2008, which was when the Town adopted measures increasing filing fees to be paid by applicants seeking land use approvals.
Civic leaders said imposing filing fees on civic associations retroactively – without prior notice – was unlawful in New York, citing case law and an opinion of the State Comptroller.
In addition, civic leaders said there was nothing in the Town’s resolution of December 23, 2008 which even mentioned civic associations, much less put civic associations on notice of any potential change in the Town’s decades-old practice of exempting civic associations from filing such fees.
“The resolution adopted by the Town Board on Christmas Eve 2008 was about jacking up fees for applicants seeking land use approvals,” Mr. Bernstein said. “It had nothing whatsoever to do with fees or costs being charged to civic associations.”
Town Supervisor Paul Feiner held over the new measure at the Town Board meeting on December 9, 2015, so that the town board could consider the legal issues being raised, but the matter was never discussed publicly.
The revision had tried 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, 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.
Mr. Bernstein said it would be unfortunate if the Town’s new rules were adopted prospectively, because civic associations usually do not have ample treasuries to support such challenges and, when they are filing such appeals, which history shows happens very rarely in any event, “they are simply trying to enforce the town’s zoning law, which is in the public interest of all taxpayers.”
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.”