Faced with allegations that it is a multi-million dollar corporate bully seeking to punish civic groups and residents for having exercised their First Amendment rights to question whether the company’s latest project required a zoning variance, Formation-Shelbourne Assisted Living Services LLC announced today that it was dropping the lawsuit it brought last month against Greenburgh’s zoning board, the Edgemont Community Council, the Council of Greenburgh Civic Associations, and 17 residents who live near the proposed site in Edgemont at the corner of Underhill and Sprain Roads.
Even though it was filed in court on June 9, Shelbourne kept the suit under wraps until last weekend, so that when its process servers finally fanned out to serve the ECC and the residents, they had only a few days to retain counsel and respond.
Shelbourne’s action today came after it became known that the civic groups and residents were planning to respond to the lawsuit with a counterclaim seeking compensatory and punitive damages under New York’s anti-SLAPP laws. The anti-SLAPP laws are intended to prevent applicants seeking land use permits from suing civic groups and residents who speak out against their applications. SLAPP stands for “strategic litigation against public participation.”
Shelbourne’s announcement also came in the wake of new information that town officials had apparently known for weeks that Shelbourne was planning to sue, but kept the information to itself, so that civic groups and residents would be taken by surprise.
And, as if to underscore the unusually close relationship between Town Supervisor Paul Feiner and Shelbourne’s executives, rather than notify the parties directly that the lawsuit was being dropped, Shelbourne asked Mr. Feiner to issue a press release to publicize it.
Town officials have been waging a two-year campaign in support of Shelbourne’s application, but had been stymied by the zoning board’s decision this spring that a zoning variance was required. Under the zoning code, assisted living projects must be located within 200 feet of a state or county “right of way” which here is more than a mile away.
The problem Shelbourne had with the zoning board prompted discussions weeks ago between Shelbourne’s “legal team” and Town Attorney Tim Lewis, who admitted in today’s edition of the Scarsdale Inquirer that town officials had discussed with Shelbourne weeks ago the idea of filing suit against the zoning board, civic groups and private citizens – but he denied that town officials told Shelbourne to sue the ECC and residents.
Nevertheless, even though they knew about the suit in advance, Mr. Lewis and other town officials never said a word about it to the civic groups and residents. Mr. Lewis even went so far as to defend Shelbourne’s having filed the lawsuit, claiming it was something it needed to do in order to challenge the zoning board decision.
The Town was believed to have been officially “served” with the papers on Thursday, June 23. If true — and the Town has thus far refused to release docuemnts showing when the lawsuit was actually delivered — it would mean town officials, including Mr. Feiner and Mr. Lewis would have known civic groups and residents were being sued when they met several dozen Edgemont residents at a diner that night to discuss why they think Edgemont residents should oppose incorporation.
In fact, because all the zoning board did was declare Shelbourne needed a zoning variance, Shelbourne had no right to commence any legal proceeding at all until the zoning board issued a ruling denying the variance, which it may or may not do. What is more, even if Shelbourne did have a legal right to commence a lawsuit at this time, it had no legal right to name civic groups and residents as additional defendants in that suit.
“This lawsuit was so inappropriate on so many grounds that its only conceivable purpose was to intimidate and harass civic groups and residents who might wish to continue speaking out against Shelbourne’s request for permission to build,” said Bob Bernstein, ECC president.
Meanwhile Mr. Feiner sang a different tune altogether, insisting earlier this week that the first he ever heard about any lawsuit was Tuesday this week, after residents complained to him about being sued.
However, Mr. Feiner’s story began to unravel when residents began demanding to know when the Town received its own set of the legal papers naming the civic groups and residents. A Freedom of Information Request calling for a copy of the cover page of the three inches of legal papers showing when the Town Clerk’s office had stamped them “received” was ignored.
In announcing that it was dropping its lawsuit, Shelbourne principal Jim Kane issued several apologies in which he admitted that the lawsuit should never have been filed in the first place — all of which should be useful if those sued elect to pursue their statutory remedies under New York law for having been wrongfully sued in the first place.
“We did not realize that filing the appeal [of the zoning board ruling that a variance was needed] would be the equivalent of filing a lawsuit, and certainly did not realize that it would involve serving private citizens with legal documents,” Mr. Kane said. “We should have asked more questions and been more diligent in determining how best to proceed. We apologize for taking an action that caused concern and inconvenience for the citizens of Greenburgh,” he added.
On June 8, 2016 — the day the Town Board unanimously granted Shelbourne the “negative declaration” it asked for finding no environmental impacts worthy of study — Mr. Kane personally signed the “verification” swearing under oath that he had read the petition and “know[s] the contents thereof” and thus knew from the get-go that Shelbourne would be suing the ECC, the CGCA, and 17 private citizens.
Mr. Kane then said Shelbourne would “voluntarily withdraw” its lawsuit and “instead focus our efforts on the pending Zoning Board case” involving whether to grant the zoning variance. “The citizens served with notice of our appeal and the ECC will not have to answer our appeal,” he said.
“We apologize to the citizens who may feel inconvenienced and even harassed. That was not our intent and we are sure that was not on their minds when they agreed to sign onto the ECC appeal of the Building Inspector’s decision,” he added.
Mr. Kane then said Shelbourne made the mistake of suing because “Shelbourne is not experienced with such litigation because in other zoning cases around the country, we have not have to rely on the courts to help sort out the complexities of a zoning case.”
In fact, Shelbourne filed suit last fall in New Jersey Superior Court to challenge a zoning board in Waldwick, N.J. that had declined to grant variances in that municipality for a 79-unit 94 bed facility virtually identical to the one proposed in Edgemont.
In that case, Shelbourne was able to revise its plan this spring to win approval without needing any variances, but is still pressing ahead with its case in the court there in order to be able to build what it wants without having to make any adjustments.
So far, Shelbourne is proceeding here by press release; it has not yet served any of the civic groups and residents it sued with any legal notice that the lawsuit has been withdrawn.
Accordingly, unless and until notified formally, they must continue preparing their response to the legal papers which required a formal legal response on less than 13 days’ notice, including the long Fourth of July weekend.
Normally, defendants in a New York legal proceeding are entitled to 20 days’ legal notice.
Mr. Bernstein, who is heading up the legal effort on behalf of the civic groups and residents to respond to the litigation, said, “I am pleased that Shelbourne says it intends to drop the lawsuit and hope it follows through and done so, but Shelbourne’s apologies mean nothing if it can pull the same thing down the road.”
“Accordingly, we owe it to the civic groups, residents who were sued, and anyone else out there who might want to speak on this matter before the zoning board or indeed any town board in Greenburgh, that their First Amendment rights to speak will not be infringed,” he said.
For its part, Shelbourne, which is a multi-million dollar joint venture of two large private equity companies based on Alpharetta, Georgia and Radnor, Pennsylvania, respectively, claims that it is “just a small group that provides senior living services in quiet, attractive buildings.” According to its website, Shelbourne claims”development, operations and ownership of over 180 senior living communities throughout the United States and Canad with an aggregate value of over $2.7 billion.”
Nevertheless, Mr. Kane admits that “[o]ur Article 78 proceeding improperly allowed Shelbourne to be portrayed as a litigious corporate bully.”
Residents who were served last weekend with legal papers may see Shelbourne as exactly that.
Describing what happened, one resident wrote that the process server came to the door and “rang the bell repetitively like there was some kind of emergency outside so I scrambled to the door to see what was the matter.”
The resident was asked to identify himself and was handed two sets of the legal papers, one for him and one for his wife.
“It wasn’t until I closed the door and my wife said, “who the hell was that”? And I handed her her copy that we started to put together what these documents actually were.
“When I saw the Westchester Supreme Court papers, I said to my wife they must be trying to take this elsewhere for approval and she was skim reading the top page and started flipping out! She said, “You better read this, I think they are trying to sue us! The nerve of these people!
“That was when I started to do through the documents. She was yelling are we going to have to cover the expenses of a lawyer because they are trying to build something that that is obviously in an area where it doesn’t belong?”
More than 240 residents have so far signed a petition objecting to the Town Board’s having granted Shelbourne a “negative declaration” on June 8, finding no environmental impacts on their neighborhood worthy of study under the state’s SEQRA law. Several of them have urged Mr. Feiner to get the Town Board to withdraw the “negative declaration” and conduct a proper study of the impacts — but Mr. Feiner and his colleagues on the town board have thus far shown no willingness at all to abandon their support of Shelbourne.
The Zoning Board will meanwhile continue its public hearing on Shelbourne’s application for a variance on July 21, 2016.