WPCNR WHITE PLAINS LAW JOURNAL. From the French-American School of New York. September 3, 2015:
The French-American School of New York (FASNY) today filed an almost 90-page petition in State Supreme Court asking the Court to annul the August 5, 2015 vote of the White Plains Common Council that blocked FASNY’s ability to build its new school on a portion of the former Ridgeway Country Club.
Filed by Michael Zarin of the White Plains law firm Zarin & Steinmetz, who has represented the school throughout its more than four years of review before the City, the suit describes the Council’s action as “illegal, irrational, baseless and arbitrary.”
FASNY’s case is unusual because, unlike most parties who challenge governmental actions, FASNY is embracing the administrative record in its suit. FASNY’s petition notes that, in December 2013, the Common Council, by a 6-1 vote, adopted Findings pursuant to the State Environmental Quality Review Act (SEQRA).
The Findings determined that the school’s impacts could be mitigated or “cushioned” as the law requires based upon conditions, including, in particular, the partial discontinuance of a limited portion of a local street, Hathaway Lane.
On August 5, 2015, the Council voted 4-3 to authorize the discontinuance, but the Common Council has taken the position that a “supermajority” is needed for this action, such that the 3 votes in opposition resulted in its denial.
As the petition states, “the Court cannot allow the Common Council to subject an educational use, like FASNY’s School, to a Catch-22 situation, wherein, on one hand, the Council requires by a 6-1 vote a mitigation measure (i.e., the partial discontinuance of Hathaway Lane), yet, on the other, rejects the proposal based on compliance with this mitigation measure.”
The lawsuit notes that the principle basis cited by the three Council members who voted against the school’s proposal was that the partial discontinuance of Hathaway Lane “mandated by the Council would lead to a five-second increase in emergency response times.”
FASNY’s petition explains, however, that the City’s own Commissioner of Public Safety, David Chong, confirmed that this five-second increase was not significant because emergency response times would still be more than two minutes below the thresholds established by the National Fire Protection Association.
The petition characterizes the Council’s action as “a classic example” of why the State Court of Appeals has held that courts are “thrust into the role of protecting educational institutions from community hostility.”
The petition asks the Court to order the Council to approve the Special Permit and Site Plan applications.
The Common Council’s vote on FASNY’s petition to discontinue a portion of Hathaway Lane was inextricably linked to its review of FASNY’s Special Permit/Site Plan Application, so that the Council’s action on the petition resulted in the constructive denial of the School’s Application in its entirety.
The Common Council’s failure to vote on FASNY’s Special Permit/Site Plan Application also resulted in the denial of the Application by operation of law. The White Plains Zoning Ordinance establishes that if the approving agency does not act within 90 days of its receipt of a completed application, its failure to act constitutes disapproval.
Commenting on the case, Zarin said: “We are optimistic that the Court will recognize the Council’s extensive administrative record which was compiled over four years of review, establishing the merit of FASNY’s application, and affirm the majority vote by the Council in favor of the school.”
Andrea Colombel, Chairperson of the FASNY Board of Trustees, said: “We regret that we are faced with this unfortunate situation, but we have a strong case with solid legal arguments. The school has met every condition imposed by the Common Council, as was recognized by the majority of the Council members, and we are confident that after careful review of all of the proceedings by the Court, our plan will be approved.”
The review of the French-American School’s plan lasted more than four years. The school bought the moribund 130-acre country club in January 2011 and that spring proposed a plan to build a school that would ultimately accommodate its Nursery through 12th grade students. FASNY, founded in Larchmont in 1980, currently operates in rented facilities at four Westchester locations.
FASNY’s plan includes the site for the school at the eastern end of the property where the clubhouse and club facilities were located while the balance of the site would become the 78-acre, publically accessible Greens-to-Green Conservancy. The Conservancy would restore the former golf course to a natural state and be owned and operated by FASNY. It would feature a network of walking and bicycle paths open to the public year-round.