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October 14, 2019Cart

Business

by Westchester County Business Journal
by WCBJ

Latest lawsuit filed in twisty Greenburgh senior living zoning case

The tortuous process of getting approvals for an assisted living home in Greenburgh is mirrored by the twisty-turning road at the center of a 3-year dispute.

Two civic groups and 13 residents have sued the town board and Formation-Shelbourne Senior Living Services, the developer, to reverse the board’s recent approval of a special use permit for Solana Greenburgh Senior Living.

A photo indicating the curvy character of the road.

It was the fifth lawsuit filed in the dispute, including two by Shelbourne and three by opponents of the project.

Shelbourne has proposed building a 4-story, 70,0784-square-foot facility with 80 apartments at the former Sprainbrook Nursery.

Even the name of the street, 448 Underhill Road, hints at the topographical challenges at issue.

Underhill is a steep, winding, two-lane road with multiple hairpin turns in a residential neighborhood.

The developers, based in Radnor, Pennsylvania, have built and operated 180 senior living homes in the U.S. and Canada.

Shelbourne needs a special use permit to build this one.

In 2013, Greenburgh amended its zoning laws for assisted living facilities in residential districts.

The zoning seeks to “limit additional or excessive traffic within established residential neighborhoods,” the town board stated in its findings, “while insuring safe emergency and other vehicular and pedestrian access.”

Assisted living facilities must be built on at least four acres. They have to be located within 200 feet of a state or county road, not including parkways or interstates, and by direct access and not by a circuitous route.

The town produced a map that showed all properties that satisfied the criteria. The Sprainbrook Nursery site did not make the cut.

The closest state road is Rt. 100, Central Park Avenue, 4,500 feet away as the crow flies and more than 6,000 feet by car.

The property, at 3.8 acres, falls short of the minimum size.

In 2015, Shelbourne filed for a special use permit and zoning variances. The builder sought relief from the 200 feet and the minimum acreage requirements, according to the new lawsuit, but not from the direct, non-circuitous route criteria.

Ever since, the developer and opponents have been fighting over interpretations of the zoning laws.

The town board and the zoning board have held numerous public hearings. They have voted on positions and reversed themselves.

Shelbourne has sued twice to challenge unfavorable interpretations.

Civic groups and residential property owners near the site have sued twice, including the latest petition, to nullify government rulings.

Last year the Greenville Fire District sued Shelbourne and the zoning board to nullify a zoning variance.

The fire department said it does not object to new assisted living facilities but this project has not been sufficiently studied.

The Solana home would add 100 to 115 emergency calls a year, the fire department said. Fixed-axel fire trucks would have difficulty negotiating the “S” curves on Underhill Road.

The fire department’s life-saving services “will be uniquely effected on account of the proposed assisted living facility,” the petition said.

Acting Justice Susan Cacace dismissed the case because it had been filed after the 30-day statute of limitations.

She dismissed a similar lawsuit filed by the Council of Greenburgh Civic Associations, Edgemont Community Council and neighbors. In that case, she found that the opponents had not exhausted all administrative remedies, while the town board was still considering a special permit application.

On Feb. 28, the town board granted the permit and adopted a resolution stating that Shelbourne had satisfied the requirements for a direct and non-circuitous route.

The civic groups and neighbors re-filed a new lawsuit, to reverse the board’s decision.

The board failed to support its decision with evidence, they claim, and not a single witness was willing to testify at public hearings that Underhill Road is a direct and non-circuitous route to Central Avenue.

The board had failed the “eyeball test,” the petition says.

“Any rational person who simply looks at an overhead view of Underhill Road would concede it is circuitous.”