Judge dismisses lawsuits challenging Shelbourne

A rendering of The Solana Assisted Living Facility.

Opponents of the proposed Formation-Shelbourne assisted living facility — formally known as The Solana Assisted Living Facility — hoped a second attempt to thwart the project would succeed where the first failed. No such luck.

Westchester Supreme Court Judge Susan Cacace dismissed two separate lawsuits in early February: one by the Council for Greenburgh Civic Associations in partnership with the Edgemont Community Council and one by the Greenville Fire District Board of Commissioners.

Both lawsuits attempted to challenge the Greenburgh Town Board’s decision in February 2018 to grant Formation-Shelbourne a special permit to construct an assisted living facility on the site of the old Sprainbrook Nursery on Underhill Road.

Although Cacace issued two separate rulings in two separate cases, there was an underlying theme in both dismissals: You don’t get a second bite at the apple.

In both instances, Cacace determined actions by the civic associations and the fire district commissioners flew in the face of the res judicatadoctrine.

According to Cornell Law School, this doctrine states that a party cannot try to relitigate a case that has been decided on the merits. Cacace determined each party was trying to win a case they had already had a “full and fair opportunity to win.”

In summer 2017, the fire district and civic associations attempted to fight a Greenburgh Zoning Board decision granting an almost 6,000-foot variance to Formation-Shelbourne.

According to the Greenburgh town code, an assisted living facility must be within no more than 200 feet of a state or county right of way. (The Solana is 6,025 feet from a state or county right of way.) In addition, the route to that right of way must be direct and noncircuitous.

Before the zoning board made its May 18 decision to grant the variances, opponents of the project argued for months about the distance of the potential variance. In addition, Edgemont residents approached the zoning board about Underhill Road’s sharp curves and steep grade.

The general consensus for the detractors was that fire trucks would respond at a higher rate to an assisted living facility. Navigating those curves with other cars on the road, opponents contended, could be dangerous.

The ECC and fire district board planned to voice much of those concerns in their summer 2017 lawsuits against the zoning board. In December 2017, however, Cacace ruled that neither party filed the lawsuit in the legally allotted 30-day time limit.

Therefore, when both parties attempted to make similar arguments in their 2018 lawsuits against the special permit, Cacace had none of it. The judge also dismissed both cases on additional merits.

The ECC case included additional petitioners who live close to the proposed development site. The ECC argued these residents would suffer some sort of damage or adverse impact. However, Cacace found two faults with their arguments.

First, the judge ruled, in describing the close proximity the ECC used language such as “within 283 feet of” or “in the vicinity of” the proposed project. Cacace determined the petitioners never provided their actual distance from the Solana.

In addition, per the ruling, the law requires the petitioners to show how their adverse impact differs from the “public at-large.” Cacace noted arguments the ECC made before, i.e. the curves and steep slope of the road. She said the petitioners neglected to “distinguish the safety risks they will be exposed to by traveling on Underhill Road vis-à-vis the safety risks that any other member of the general public who travels on Underhill Road would be exposed to as a consequence of the issuance of the challenged special permit.”

The judge also stated the ECC and its fellow petitioners do not take into account the conditions under which the town board granted the special permit. Before the town board made its decision, Formation-Shelbourne agreed to widen the large curve on Underhill Road and widen the southern, interior radius of Underhill Road near the access gates of a neighboring Con Edison facility. Further, Shelbourne agreed to extend the guardrail near the Con Edison gate and elevate the outer radius of the area.

In both lawsuits, Cacace said neither the ECC nor its petitioners nor the fire district commissioners reviewed — through the use of experts — the potential benefits of the proposed enhancements to Underhill Road.

Further, in the case of the fire district, Cacace ruled the board of commissioners did not prove how the special permit grant had a negative environmental effect on the GFD.

The fire district argued against the zoning board’s conditional negative declaration with respect to SEQRA, pointing out that they would expend more resources responding to the assisted living facility. However, Cacace said this argument points more to the economic consequences of the Solana’s existence, not the environmental. Because the commissioners were arguing against a SEQRA determination, their damages must be environmental.

The commissioners also argued against the conditions of Underhill Road. Cacace, however, determined the current roadway conditions predate the assisted living facility and emergency vehicles have had to navigate the curves in the roadway for “an extensive number of years.”

The ECC plans to appeal Cacace’s decision, according to Robert Bernstein, the president of that civic association. Bernstein said there were inconsistencies in the judge’s ruling and that her decision, if upheld, would make it hard for Greenburgh residents to challenge the town’s municipal boards on future decisions.

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