LETTERER INTERPRETS FASNY: THE LAW ACCORDING TO MR. KIRKPATRICK???

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WPCNR THE LETTER TICKER. JULY 2, 2015:

Dear Mr. Kirkpatrick:
      We attended this evening’s (Monday, June 29) Common Council and listened carefully to the comments of the Council members, including your comments. Frankly, we are appalled at some of your comments, and wish to express our strong disapproval of them.
      We understand that you are a land use attorney and have some level of expertise in this field. We also are attorneys with over seventy years of combined experience in litigation and trial work. While our specialty is not land use, we have read all of the applicable case law and also have extensive experience in advising clients of the merits of proposed actions.
      Your contention that a Court would undoubtedly overturn the denial of the FASNY application is simply wrong. Equally wrong is your statement that a Court would impose even more negative impacts upon the City if FASNY challenged the denial of its applications. The Courts have never held that a school has a full exemption from zoning rules; rather, the Court of Appeals in the Cornell case stated:
 Although in Matter of Diocese of Rochester v Planning Bd. (1 N.Y.2d 508, supra), we found an exclusion of a religious use to be arbitrary and unreasonable, we rejected any conclusive presumption of an entitlement to an exemption from zoning ordinances. . . .
 Under Cornell, the standard in reviewing the request of a school or church for permission to expand into a residential area is the over-all impact on the public’s welfare:
  Although the special treatment afforded schools and churches stems from their presumed beneficial effect on the community, there are many instances in which a particular educational or religious use may actually detract from the public’s health, safety, welfare or morals. In those instances, the institution may be properly denied. There is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects (citations omitted). The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like. 
There is abundant evidence in the record to support the denial of both FASNY applications. FASNY has not even begun to demonstrate that partial closure of Hathaway Lane is in the public interest, and the Cornell presumption regarding educational uses is clearly rebutted by the showing here of an overwhelming negative net impact on the welfare and safety of the public.
    We are also troubled by your suggestion that the neighborhood should accept change, even if the change is negative, because times change and neighborhoods deteriorate. We find the latter comment to be downright bizarre, particularly coming from a person who lives in the Gedney Farm neighborhood.
While we would not expect your vote to be influenced by the fact that you live in the neighborhood, we are at a loss as to how you could make this comment. Perhaps this was a Freudian slip, for indeed, the neighborhood will deteriorate if the FASNY development were ever built.
 Sincerely,
 Joseph L. DeMarzo and Denise Liotta DeMarzo
White Plains, NY, USA

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