WPCNR COMMON COUNCIL CHRONICLE EXAMINER. MARCH 16, 2017 UPDATED from Wednesday’s Edition:
Prior to the White Plains Common Council Special Meeting at which they voted 5-2 to continue Parcel A with an “Environmentally Sensitive” designation, the Mayor and Councilmembers received three letters from the French American School of New York, Scenic Hudson, and an attorney for the Gedney Association presenting views on the “Environmentally Sensitive” issue.
The Council voted on a Resolution prepared by the Commissioner of Planning Christopher Gomez which makes a finding that Parcel A of the former Ridgeway Country Club site where the French American School of New York wants to build its new campus is an Environmentally Sensitive site.
Prior to the vote, The French American School has sent a letter to the Mayor and Common Council expressing its opposition to this finding as follows
Z A R I N &
STE I N M E T Z
March 7, 2017
Mayor Thomas Roach and Members of the Common Council City of White Plains
255 Main Street
White Plains, New York 10601
Re: French-American School of New York (“FASNY”) Subiect Propertv: 336 Ridgewa y (Section 131.14, Block 9, Lot 3)
Dear Mayor Roach and Members of the Common Council:
This Letter is being sent on behalf of the French-American School of New York to register its concern with respect to the Common Council’s implementation of the Court Ordered Stipulation of Settlement (the “Stipulation”).
As this Council knows, the Stipulation of Settlement was consummated with the sincere hope of both parties to “in good faith, diligently and promptly take all reasonable actions to expedite and facilitate review of the [agreed upon] Alternative Plan,” and to bring FASNY’ s Application for a School to a final vote with reasonable dispatch after almost six long years of review and consternation .
The Stipulation of Settlement was clear that the Public Hearing on the Application would be held no later than January 23, 2017 (75 days after the Council received the complete Alternative Plan Application). It has not yet been scheduled. It is FASNY’s understanding that the City continues to analyze the Gedney Association’s latest theory in its war of attrition against the School that a drainage ditch on the other side of Ridgeway — not even on FASNY property – somehow makes FASNY ‘s property a regulated Environmentally Sensitive Site (“ESS”) under the City’s Zoning Ordinance. Such a determination would undermine one of the essential premises of the Stipulation of Settlement that FASNY’ s limitation on its reduced Alternative School Plan to Parcel A would only require a majority vote.
This latest development is so disheartening because the parties agreed to the Stipulation after an extensive prior Administrative Record in which the City had expressly determined that Parcel A “did not contain, [and is] outside of the applicable buffer areas of environmentally sensitive features. ” Indeed, not only did the White Plains Planning Board, the City Transportation Commission, and the White Plains Design Review Board all endorse the Settlement Stipulation’s reduced Alternative School Plan more than three months ago in November, but FASNY’s consultants and experts, as well as such respected environmental groups as Scenic Hudson, have submitted numerous studies to the City showing that the little bit of water that flows in a narrow opening on the other side of Ridgeway is nothing more than a manmade drainage ditch, and in no way constitutes a natural flowing watercourse warranting special environmental protection as provided in the City’s Code. A copy of the well-reasoned and instructive Scenic Hudson letter is attached.
It remains baffling to FASNY that after all this time, the good faith eff01i of the parties, and the history of this matter that the City would even consider turning its back on the terms and spirit of the Court Ordered Stipulation of Settlement by accepting the Gedney Association’s continued desperate efforts to derail the School, and thrust the parties back into wasteful and unnecessary litigation.
The question of whether FASNY’s Parcel A is a regulated ESS is not a factual or difficult issue. Everyone concedes that there is a ditch across Ridgeway that drains mostly street runnoff from the area. The runnoff is part of the City’s underground drainage system, surfacing on the other side of Ridgeway (off FASNY’s property) for 60 feet, to return to the City’s underground piping system. The City of White Plains DPW map labeling the feature as an “open ditch,” showing all of the neighborhood streets that feed the underground piping system and ditch, is also attached.
When distilled, this matter comes down to whether the City’s Municipal Code should be so sweepingly interpreted that a man-made drainage ditch, having no natural features deserving of the environmental protections in the Code, would trigger coverage so as to completely undermine the spirit and intent of the Court Ordered Stipulation of Settlement.
Such an interpretation would not only be in bad faith and violate the fundamental te1ms of the Stipulation of Settlement, but it would undermine a basic tenet of land use law holding that zoning laws, where potentially ambiguous, must be construed in favor of the landowner. FASNY cannot comment on the City’s legal position on this issue because the City has not shared such results with FASNY. This is also of concern in light of the critical nature of this issue in implementing the terms of the Stipulation of Settlement.
It would certainly be difficult to reconcile the City’s adoption of the Gedney Association’s ill-conceived interpretation of the Code in light of the City’s good faith and legal obligations under the Stipulation, when the City’s own Administrative Record in this matter shows that it did not previously consider Parcel A an ESS, and there is tangible evidence in the City’s records that it has never considered drainage features, let alone real natural “flowing watercourses,” on the other side of major roads in determining whether a property is an environmentally sensitive site under the City’s Code.
The expression “enough is enough” is apropos here. The City has a le.gal obligation to make every attempt to implement the te1ms and spirit of the Stipulation of Settlement in an expedited and good faith manner. Respectfully, the Council and its Staff should not allow this process to be again hijacked by a few through procedural and other obstructions. Such an outcome would be so disappointing, and harmful to so many.
Accordingly, we respectfully ask that the Council advance the Alternative Plan pursuant to the te1ms and intent set forth in the Stipulation of Settlement.
Scenic Hudson, an environmental group has also written the Mayor of White Plains and Common Council on this issue of whether Parcel D is an Environmentally Sensitive Site. They support the French American School of New York in this letter, as follows:
March 1, 2017
Via Electronic Mail
Mayor Thomas M. Roach and Members of the Common Council City of White Plains
255 Main Street
White Plains, New York 10601
Re: French-American School of New York Alternative Plan Review
Dear Mayor Roach and Members of the Common Council:
Scenic Hudson, Inc. One Civic Center Plaza Suile 200
We write regarding the matter of the application for approval of an Alternative Plan for development submitted by the French-American School of New York (“FASNY”) to your honorable council, pursuant to a Stipulation of Settlement approved by Resolution in September of last year. As you know, Scenic Hudson has in the past expressed strong suppmt for the overall purposes and specific features of the FASNY project, notably including its green design and open space conservancy that would be open for public use.
We understand that the FASNY has proposed an Alternative Plan that limits development to approximately 29 acres of the 129-acre site on an area known as Parcel A, on lands that have already been in use as a golf course and parking areas. As noted above, FASNY also proposes a 51-acre public conservancy at no cost to the City, for which a conservation deed has already been recorded. The proposal will eliminate the existing impervious surfaces on Parcel A that currently have no stormwater control measures, and replace them with a stormwater basin to capture and treat runoff, while new parking areas with their own stormwater control measures will be more appropriately located on the site. In addition, the Alternative Plan has been recommended for approval by the City’s Planning Board, Design Review Board, and Transportation Commission.
Scenic Hudson fully supports the intent and purposes behind those sections of the White Plains municipal and zoning codes meant to protect “environmentally significant sites and features” located within the City. As your Municipal Code states, however, the clear intent of these provisions is to protect the City’s “water bodies, watercourses and watersheds, wetlands and aquifer recharge areas, mature trees, habitat for flora and fauna, steep slopes, highly erodible soils, rock outcroppings, and other natural features of the land.” As we understand it, Parcel A itself contains no environmentally significant features or buffer areas, including wetlands, to render it an environmentally sensitive site (“ESS”). Nor does the drainage ditch located on the opposite side of Ridgeway Avenue from Parcel A constitute a natural “flowing watercourse” to trigger a 100′ threshold for determining whether a site or feature is environmentally sensitive. Moreover, the location of the drainage ditch on the opposite side of the road means that it is functionally cut off from Parcel A. For all of these reasons, the Alternative Plan is neither “located on” nor does it “involve” nor “may it affect” an “environmentally sensitive site or feature” to even implicate the additional review requirements in the City’s Zoning Code for such natural resources. The plain terms of the City’s code should not be manipulated or stretched beyond reasonable interpretation in the interest of simply blocking development, rather than pursuit of their true purpose to protect the public health, safety and welfare. Indeed, if all drainage ditches were deemed a “flowing water course” and thus an environmentally sensitive feature, the absurd result would be that every parcel in the city within 100 feet of a drainage ditch would be an ESS. This is neither administratively nor substantively reasonable.
The Alternative Plan which limits development to Parcel A was developed by FASNY in good faith under the Stipulation of Settlement. We urge you to move forward with review of the Alternative Plan in accordance with the agreement and in the interest of avoiding further litigation, cost and delay for both the City and FASNY.
Ned Sullivan President
Avrutine & Associates, representing the Gedney Association has written a letter reacting to these two letters from the French American School and Scenic Hudson. The letter from Attorney Howard D.Avrutine appears as follows
AVRUTINE & ASSOCIATES, PLLC
ATTORNEYS AT LAW
HOWARD D. AVRUTINE 575 UNDERHILL BOULEVARD
March 9, 2017
Thomas M. Roach, Mayor City of White Plains
255 Main Street
White Plains, New York 10601
SYOSSET,NEW YORK 11791
TELEPHONE (516) 677-9400
FAX (516) 677-9’405
Re: French-American School of New York (“FASNY”) v. Mayor Thomas Roach and the Common Council of the City of White Plains
Supreme Court of the State of New York, Westchester County Index Number: 2067/2015
Hon. Joan B. Lefkowitz
Dear Mayor Roach:
As you know, this office represents The Gedney Association (hereinafter “the Association”) in connection with certain issues which have arisen in the context of the above-referenced lawsuit.
The purpose of this letter is to respond to a letter submitted to your office as well to Members of the Common Council of the City of White Plains (hereinafter “Common Council”) dated March 7, 2017 by Michael D. Zarin, Esq. on behalf of FASNY (hereinafter “Zarin letter”). In sum, the startling and outrageous positions set forth in the Zarin letter are deeply disconcerting to the Association and its membership.
The Zarin letter appears to suggest that a “secret deal” exists between FASNY and the Common Council which is not set forth in the Stipulation of Settlement entered into by the parties. In that regard, Mr. Zarin states that a failure by the Common Council to “delist” Parcel A as an Environmentally Sensitive Site or Feature (hereinafter “ESS”) as defined in §2.4 of the Zoning Ordinance of the City of White Plains (hereinafter “Zoning Ordinance”) and Chapter 3-5 of the City of White Plains Municipal Code (hereinafter “Municipal Code”) “would undermine one of the essential premises of the Stipulation of Settlement that FASNY’s limitation on its reduced Alternative School Plan to Parcel A would only require a majority vote”. By that statement, Mr. Zarin has taken the position that the Stipulation of Settlement requires (i) that the Common Council “delist” Parcel A as an ESS; and (ii) that it approve the Alternative Plan by a simple “majority vote”.
This assertion is particularly alarming because the Stipulation of Settlement sets forth no such “essential premise”. Instead, it states at paragraph 2(c) that the Common Council shall “determine whether the Alternative Plan is on, involves or affects any ‘Environmentally Sensitive Site or Feature’ as defined in Section 2.4 of the City Zoning Ordinance.” Itin no manner contains a directive that the Common Council “delist” Parcel A. Instead, it requires only that the Common Council consider the issue. Upon considering the issue, the Common Council can reach no conclusion other than that Parcel A was, is and remains an ESS by virtue of all applicable provisions and definitions set forth in both the Zoning Ordinance and Municipal Code. That is made abundantly clear by the detailed analysis of the issue set forth in the report prepared by Dr. Steven Danzer, Ph.D. dated November 29, 2016 and Dr. Danzer’s supplemental letter dated February 2, 2017, both of which were previously furnished to you, the Members of the Common Council, and the City Clerk. Pejorative references to the watercourse located on the Westchester Hills Golf property as a “drainage ditch” cannot alter that inescapable conclusion. As set forth in my previous submissions and Dr. Danzer’s submissions, it is clear that Mr. Zarin’s attempt to delegitimize Parcel A as an ESS is simply wrong.
Further, as set forth in my February 6, 2017 letter, there is no “ambiguity” in the Jaw as posited by Mr. Zarin. By definition, Parcel A is an ESS–period. That fact is indisputable. If Mr. Zarin and FASNY believe that the provisions regarding the designation of property as an ESS are too broad, they can petition the Common Council to modify them. However, as written, those provisions designate Parcel A as an ESS. Therefore, Mr. Zarin’s contention that the Common Council has essentially agreed to violate the clear and unambiguous provisions of the Zoning Ordinance and Municipal Code by “delisting” Parcel A solely in order to avoid the super majority requirement to approve FASNY’s application must be rejected out of hand.
To conclude, nothing in the Stipulation of Settlement in any manner alludes or refers to Mr. Zarin’s “essential premise” that the determination of the FASNY application “would only require amajority vote”. Mr. Zarin purports to create the impression that, notwithstanding the clear language of the Stipulation of Settlement, the Common Council is required to “delist” Parcel A as an ESS and then promptly vote to approve the FASNY alternative plan by a simple majority vote. The Zarin letter also purports to threaten the Common Council with litigation should it not accede to FASNY’ s demands. This cynical attempt to intimidate the Common Council is causing great consternation in the community. It is truly a sad circumstance that FASNY has now degraded the process to the point of attempting to bully the Common Council into approving its ill-conceived project.