WHITE PLAINS CITIZENETREPORTER SETS RECORD VISITS FOR YEAR 7,017,658 VISITS! 2,098,003 VISITORS MADE 6 VISITS A DAY EVERY DAY. 63,330 UNIQUE VISITORS MADE 133,730 VISITS IN DECEMBER. WPCNR AVERAGED 17,284 VISITORS A WEEK, VISITING 31,270 TIMES.

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WPCNR Press Box, Filed 2/27/02, 11:30 PM EST: The Mount Vernon Knights continued their mastery over White Plains High Wednesday afternoon, ending the Tigers Section 1, Class A Playoff run, 60-52 at the County Center.

White Plains trailed most of the game, closing to within 3 points in the fourth quarter, but a late steal put the game away for the Knights.

The Tigers finish the season with an 18-5 record.

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The Limited Edition by John F. Bailey, Filed 2/27/02 3 PM EST: Progress on two city construction projects was reported by City Hall Tuesday
The new Fortunoff complex approved for Maple Avenue and Old Mamaroneck Road will soon begin demolition. JPI has received its financing for its apartment complex at 300 Mamaroneck Avenue, according to the Mayor’s Office.
Fortunoff’s applied for and was granted a demolition permit last week to raze the Saks Fifth Avenue parking structure on Old Bloomingdale Road as the first phase of construction of their four-story Fortunoff’s complex, according to the Building Department. The Mayor’s office reports construction fencing should be going up within the next week.

In addition, asbestos abatement operations are being excuted in the former Saks Fifth Avenue store with demolition on that structure scheduled to begin from “late to early spring.”

JPI has a “soft closing.”

The Mayor’s office also reported that JPI has reported to them that they had obtained their construction loan for their 300 Mamaroneck Avenue Jefferson apartment complex, in what the Mayor’s office described as a “soft closing.”

JPI is scheduled to begin “rodent removal” procedures within the next two weeks, according to Paul Wood of the Mayor’s office. A matter of a residential porch encroaching the property line had held up construction fencing, Wood said, but that had been resolved by building a fence within a fence, Wood reported.

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High Noon News, By John F. Bailey, Filed 2/26/02, 1:00 PM EST:The Mayor’s Office, at request of the Common Council has released the 10-page legal opinion of Arnold & Porter, the Council’s environmental law firm, on the effect of zoning questions involving the New York Presbyterian Hospital proposal to build a biomedical/cancer research facility on its central White Plains campus off Bryant Avenue. The ramifications are significant.
Michael Gerrard, of Arnold & Porter, in his advisory, (written with Nelson D. Johnson), significantly writes that “medical research” is a permitted use as part of the Special Permit the hospital now enjoys.

He also advised the council, that under a New York State Legislature law, the city has no right of eminent domain on the hospital property, contrary to legal opinons of opponents of the proposal, who apparently are unaware of this law.

In further analysis, Gerrard’s opinion indicates that the council could refuse a request for a change in zoning, with more legal certainty that if they were to deny a Special Permit use.

The opinion is written by a lawyer (Gerrard) who drafted the New York State SEQRA standards under which the hospital proposal is being reviewed, and is in direct contrast to legal advice offered to the council by opponents of the proposal.

In a third finding in Mr. Gerrard’s memo, he and Mr. Johnson write that the city, indeed, does have the right to rezone the property.

WPCNR will provide more details.

The document in its entirety, may be reviewed on the City of White Plains Website. To reach the city website, click on “White Plains Links,” go to Government and click on the City of White Plains Website, and go to the “New York Hospital–New” headline.

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10 O’Clock All News Final Filed by John Bailey 2/20/02, Updated 9:33 AM The Planning Board met Tuesday evening, responding favorably to a 7-unit townhouse complex planned for the South Post Road Gateway, while sending XM Radio back to refigure their radiation levels. A new church wants to rent at 75 South Broadway, creating a zoning conundrum.
The Planning Board and Prospect Park neighbors got a detailed view of DeKalb Development Corporation’s 7-unit townhouse complex they hope to build on West Post Road across from the Fisher Hill neighborhood between Merritt Avenue and New York Avenue, just across the Scarsdale-White Plains city line.

Eight residents expressed concerns about the proposed tree plantings and fencing proposed for the development, but were not outright opposed to the project. Developer Frank Cantatore the mastermind behind Clayton Park, an apartment community now going up in the Eastview neighborhood, expressed willingness to meet privately with the neighbors along Winslow Road and New York Avenues to finetune selection of green buffering and fencing styles. The objective is to ease the visual impact of fencing on neighboring homes.

“GATEWAY” TOWNHOUSE TOUTED: The proposed façade of a 7-unit, residential townhouse complex as it would appear on Route 22, (West Post Road). Six Units front on Post Road, at the crest of a 25 foot slope above a stone wall. The Units would contain 7-two bedroom apartments and 7 one-bedroom units. Entry would be from Post Road to the far right of the complex, with parking in back of the six units. The seventh unit is behind the northern most unit on the East Side of Route 22.
Photo by WPCNR

The Planning Board was pleased that plans for the complex had made the storage space on the top floors to be unusable as bedrooms, (as suggested by the Board). Access to the eaves is only by a pull-down ladder in the third floor halls.

Planning Commissioner Susan Habel expressed concern about the lighting of the parking areas to lessen impact on the residential homes along New York Avenue and Winslow Road, and advocated the installation of open slat fencing.

The neighbors and Planning Board members expressed interest in maintaining the stone wall façade on Route 22 (West Post Road), preferring the design plan that eliminates the on-street garages now existing on the site.

HOW TO BUILD IN A NEIGHBORHOOD WITHOUT RUFFLING THE NEIGHBORS: Frank Cantatore explains parking lot buffering amenities to the Planning Board, making clear he wants to meet with neighbors to tailor his plans and seek compromises. The overhead site plan, partially visible, shows the location of the seventh building of the complex, behind the northernmost unit on Route 22, with the outlines of the six Route 22-fronting townhouses at the bottom of the plan.
Photo by WPCNR

Cantatore told the audience the buildings would take nine months to construct and would be built from the Post Road side in, with no construction entry from New York Avenue. The Public Hearing was adjourned until March 19.

XM Satellite Radio Does Not Satisfy Planning Board on Radiation Levels

XM Satellite Radio appeared for the second time seeking permission to place a “whip antenna and satellite dish” on the roof of an apartment building at 30 Lake Street.

Representatives for XM Radio admitted their radiation levels exceeded FCC-permitted radiation levels by 508% for the public at the rooftop level, and 116% for occupational exposure at rooftop level. This generated concern on Planning Board Chairperson Mary Cavallero’s part.

Ms. Cavallero noted to WPCNR, “I’m not clear on this but it is something like the FCC apparently allows roughly 5 times the exposure to radiation for workers who would somehow be trained to deal with the increased raidation. The radiation levels rpoeted at a distance of 16 feet from the site are 1.8% of the maximum permitted exposure for the pubic and .4% for occupational levels. You notice how drastically the levels decrease as the distance increases (inversely proporational to the square of the distance.”

Cavallero said, “The Planning Board has never approved any cellular antennas or antennas of any kind that exceeded FCC standards. We’re not convinced that just because you say your output is safe. What is the effect for persons living there 8 hours a day?”

Robert Stackpole asked what would be the effect of the stronger radiation at the rooftop level on the persons living on the top floor of the apartment building, just under the antenna.

Locked Roof Desired

XM Radio also was requesting that the access to the rooftop be locked, police and fire having access to keys, to prevent the general public from approaching the antenna apparatus. This request, raised Planning Board eyebrows for public safety reasons.

Cavallero Finds More Math Mistakes

Radiation statistics were queried by mathematics teacher Cavallero, and XM’s consulting radiation engineer said he would check his figures and return March 19.

XM Radio’s representative, beating a diplomatic retreat, said he would return with a new configuration that would place the antenna ten feet higher to minimize the radiation effects.

Satellite radio, as provided by XM Radio, provides over 100 channels of different types of music and news which may be received by listeners in their cars or homes, using a $300 console and antenna to receive the programming. Their website can be accessed by going to WPCNR’s White Plains Links on the upper left of your screen and going to “Media.”

Cavallero, Habel call for minor site amendment process for second generation of antenna installations.

After scheduling public hearings for AT&T Wireless antennas at 155 Ferris Avenue and 101 Old Mamaroneck Road, Cavallero called for the Planning Department to huddle with the Building Department to discuss a process to streamline requests to install improvements to existing antenna locations in the city.

“As more improvements continue to be made, companies are going to swamp our agendas with these requests for improvements to existing facilities,” Cavallero predicted.

Antenna-ists Chided for Unclear Presentation

She scolded antenna presenters in general for presenting confusing, unclear plans with incomprehensible comparisons. She requested in the future that antenna presenters note in clear terms what the differences are between previous sites and new proposals for those existing sites.

Cavallero wants new requests for alterations to existing antenna sites in the city to present clear comparisons of radiation differentials in order that the city can recalculate the overall impact of radiation of new proposals.

Commissioner Considers Department Antenna Pow-Pow

Susan Habel, Commissioner of Planning, noted this was a good idea and it was agreed that the Planning Department would undertake to examine how such second generation improvements at existing antenna sites could be approved with a minor site plan amendment procedure to streamline such processes.

Can Churches and Cabarets Exist Side-by-Side?

This was the question raised by Robert Stackpole at the appearance by the Westchester Chapel Church of the Nazarene, seeking to rent 4,500 square feet of an office building, 75 South Broadway, (which is adjacent to ANL Sports, and across the street from McDonald’s and Border’s Books in the Westchester Plaza Mall), for a meeting place and administrative offices.

Susan Habel, Commissioner of Planning, also noted that the zoning ordinance prohibits a cabaret operating within 200 feet of a church. The 75 South Broadway location is right next door to The Thirsty Turtle pub. The Turtle had been in the news previously over a dispute with the Sloan Bar Building over use of the Sloan Bar parking lot.

Just Small Friendly Gatherings.

Reverend James Warren of the Church of the Nazarene explained that at present the church only expected a maximum of 50 persons about once a quarter.

He advised no weddings or funerals would be held at 75 South Broadway. He noted that the church would hold public gatherings for no more than 20 persons some three to four times a week in the evenings for classes and a theater group, and of course on Sundays. He said little more than half of the floor space would be used for administrative offices.

Habel Frowns on Parking Differential

Commissioner Habel cautioned the Planning Board that the lack of parking in the area was of major concern with the church needing to find 26 more parking spaces to comply with the parking ordinance requiring 45 spaces.

Troubled by Zoning Violation

Habel also said that approval of the church occupation of the space at 75 South Broadway, would throw the cabarets along East Post Road into nonconformity, creating a future problem if the cabaret owners were to sell their properties. She said that adult entertainment establishments (meaning cabarets and nightclubs) perhaps were not appropriate neighbors for a church.

Commissioner Habel said “an accommodation needed to be reached, if the church is on the record that it is moving into a cabaret district and has no problem with it.”

Reverend Warren assured the Planning Board, that he had “no problem whatever with cabarets within 50 feet of where we are. We offer a different kind of entertainment more family-oriented than cabarets.”

Nevertheless, Habel insisted that the issue of creating a nonconformity be addressed by the Planning Board with the Common Council.

New Commissioner Sets New No-Nonsense Tone

The legal representative for the Church of the Nazarene pointed out that the Planning Board was being difficult, implying it was trying to keep the church out of White Plains.

Commissioner Habel said she found that an “insulting” suggestion, and that the Planning Board had a long history of being very accommodating to churches of all faiths. The representative apologized.

The Planning Board was going to consider the issue of conformity of zoning and compose a letter next Tuesday at a special meeting.

A fast-growing denomination

The Church of the Nazarene is one of the fastest growing congregations in the country, gaining 100,000 members from 1998 to 1999. Their website can be accessed by going to White Plains Links and clicking on “Houses of Worship in the News.”

In other Planning Board Action…

The Vanderhoef Subdivision in Woodcrest Heights was moved to March 19, due to a procedural error on the part of the developer. He needs to submit a slope analysis and a wetlands report, in addition.

The 484 Rosedale Site Plan, and Metro Auto Tech at 7 Intervale Street will be taken up in a special meeting, February 26 at 7:30 PM.

The Planning Board recommended the Common Council approve Tri-Kelly Inc. (Kelly’s Tavern) for a one year renewal of their cabaret special permit, in order for the city to access the effects on the East Post Road area of their outdoor dining area.
The Ron-Rose Group present new site plan elevation drawings for a 16-unit townhouse apartment complex on 108 North Kensico Avenue. The Planning Board suggested a faux front door be designed to give the appearance the building is facing the street. The public hearing was held open another month.

AT&T Wireless request for a new antenna site at the Westchester Mall was scheduled for a hearing March 19. It is a new site that AT&T claims to need to handle capacity.

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Ten O’Clock All News Final, Filed 2/18/02, 9:45 PM EST: Larry Delgado’s legal team was encouraged by several indications that the Court of Appeals was taking their argument for vindication of Judge Nicolai’s ruling for a remedy, seriously at Court of Appeals Hall in Albany, Thursday.

Jeffrey Binder, Delgado attorney, gave WPCNR his analysis of the historic arguments that unfolded Thursday afternoon. A ruling could come from the Court of Appeals Tuesday afternoon.

JEFFREY BINDER, DELGADO DUELLIST, shown at right, with Larry Delgado, center, and John Ciampoli, left, in a picture of the trio taken last November, asked if he was feeling good about the Court of Appeals reaction to their case Thursday, said, “We are. We’re pleased that the court decided to focus not so much on the procedural flaws as were pointed by Adam, but on the real substantive election law issues, whether the court has the power to remedy a wrong that has been done in an election law context rather than just wait and ask the attorney general.”

Photo by WPCNR

The “quo warranto” Quandry Queried

Asked about the quo warranto procedure that was available to the Delgado team from the outset, that is at the center of the Adam Bradley appeal, Binder said that was true it was available, however, “You don’t even get the right to (go to quo warranto). You have to ask the attorney general. All you get under the present law is the opportunity to get into position to get a remedy.”

We asked why he felt the Appellate Division , Second Department, of the Supreme Court had granted the Felice remedy handed down in 1992,. Binder said, “they feel the courts should have the final word (on jurisdiction). They feel that the present state of the election law, (remember the court is a coequal branch with the legislature, they can make law just as binding as the state legislature).

” I think Mr. Bradley lost sight of the law-making capacity of the Court of Appeals.”

Appellate Division a Trail Blazer

Binder characterized the Appellate Division, Second Department, as “a progressive department which recognizes that the court needs to fashion remedies in circumstances where you have problems with a general election. Why is it not important? Why shouldn’t the court have the final say?”

Observes several judges “very concerned.”

On Friday afternoon, Binder gave WPCNR his obeservations of how the arguments went Thursday:

“Yesterday several of the justices were very concerned that the final say in these matters is had potentially by the attorney general who is a political person. A little too much discretion is placed in his very hands.”

“Judge Kaye, actually felt that the court ought to be an arbiter in these situations. Judge Levine asked, ‘what if the attorney general doesn’t go for a quo warranto, then would there be an access to justice, would there be a common law remedy. Judge Levine was concerned about ‘what if the AG doesn’t go?”

Judge Graffeo Expresses Concern, Too.

Checking his transcript, Binder noted, “Judge Graffeo, the most junior justice, questioned Mr. Bradley whether it was a mandatory obligation of the attorney general to hear these procedings. Bradley had to answer ‘no.’ There’s a screening method, and it’s discretionary.”

Court Weighs Speed of Court vs. Speed of the Attorney General.

“There was a great concern about whether the courts have the capacity to act swiftly in resolving these things, or whether the swiftness lies with the attorney general, or whether it’s swifter to get the courts involved,” Binder reports. “Our argument was, look what happened in our case, it was very swift. Judge Nicolai heard the case very quickly. We had an evidentiary proceeding very quickly to determine what the facts were, and actually had an election scheduled before the end of the year.”

The Binder “take” on Court Position:

Binder, said, “I really don’t have the answer to that, other than that the court generally was concerned that if the court starts to get involved in these matters, whether they have the capacity to provide both sides with evidentiary hearings in a timely fashion.

“The court was less concerned with the outcome in our case, rather than what’s going to happen in the future. Which gave me great comfort. They’re looking towards the future, as if they had made up their mind on the present.”

On the relevance of old cases.

Binder said that, “just because a case is old, doesn’t necessarily mean it’s bad law. Case law ebbs and flows. It changes over the course. That’s why we have the common law doctrine. It’s an evolutionary process.

“Modern times, the growth of elections, the lack, inability of machines to keep pace with the numbers of elections, the kinds of elections, the complexity of elections are causing more and more problems and the law has to adjust.”

Bradley’s Position Towards Court’s Law-Making Abilities “Dangerous.”

WPCNR asked how Binder reconciled Mr. Bradley’s position that the court does not have the right to fashion a remedy. Binder said he felt this was an “aggressive position,” by Mr. Hockley’s counsel:

“You know, he said that to the court, which is a very, very aggressive thing to say to the Court of Appeals that you have no power in this arena, because the legislature hasn’t spoken. Well, excuse me, but the court is a co-equal branch of government to the legislature, and can step in, and should step in when the legislature is silent, or even when the legislature is wrong.

“Maybe up until now we never had a four square set of facts that crystalized the issue so easily and clearly for the court to apply them in this way. It’s very dangerous to say to a law-making body, which the Court of Appeals is, that you have no power.”

Binder said the judges looked “very very disgusted at that remark. A few of the justices sort of scrinched their faces.”

The Issue of the Legislative Statute Disputed.

Binder said they took issue with the narrowest interpretation of the statute, which Bradley is reading, forbids court jurisdiction in general elections:
“The court was very concerned,” Binder said, ” if they step in now, and say the Supreme Court does have jurisdiction with respect to general election matters, which we believe they have had all along, and the case law that developed that said they didn’t was wrong, because the Supreme Court is a court of general jurisdiction.

“So unless you specifically carve out jurisdiction from the Supreme Court, it has it anyway. The fact that the statute was silent on it doesn’t necessarily mean that they have no jurisdiction.

“The fact that the statute specifically conferred jurisdiction to the court with respect to primaries goes to the fact that primaries are essentially private party matters. It’s kind of like private corporate matters.”

Binder said the statute was created to address situations where in primaries, parties acted to prevent certain Americans from voting. The statute specifically wanted to address those types of situations.

“That doesn’t mean that because the statute is silent on it (general election matters), you reason they have no power. That’s why the court of appeals took the case. You now have a body of law developed in the Second Department and a body of law that has developed all around the rest of the state that are in conflict, and the Court of Appeals has to opine and straighten this out for everybody.”

Binder Expects Tuesday Decision.

Binder said he expected a swift decison because of the court concern about how swift justice could occur if the courts were to involve themselves in election matters,

“They were discussing why it took the Appellate Division four weeks to make a decision. They were sort of interested in our opinion as to why it took four weeks.”

Defining moment at the start of the hearing.

Binder said there was one defining moment at the beginning. He said that Mr. Bradley started with his argument about the procedural matters, and after three minutes, “Chief Justice Judith Kaye, told him to ‘hold it,’ and said “could we please get to the underlying relief.’ I’m reading those tea leaves. Remember Justice Kaye’s mantra has been ‘access to justice.’ She is very concerned about the threshold when the courts become involved.”

Binder salutes Bradley’s determination.

In his final comments on the three-month process that reached the height of drama Thursday, Binder complimented his adversary, Adam Bradley.

“Let me just say to Adam’s credit, he did a very good job. He did a thorough job in breaching the issues he thought were relevant to the court. I read his brief. It’s nicely put together. I have to tell you, I admire his doggedness. He’s a solo guy to stand alone and stand against the tide, on matters of principle, and sometimes those guys come out on top. I admire him, I really do. I admire his guts. I think he’s a good writer. From a lawyer’s point of view, I admire his doggedness.”

If the justices do not issue a ruling Tuesday, it is next anticipated by a clerk of the court that the decision will be handed down March 12 or 14.