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Town Board Members OK "East Village" and Lift Commercial Tenant Cap on Chappaqua Crossing

Their action thwarts a move by opponents of the proposal to require a three-fourths majority for Town Board votes on zoning changes, meaning there must be at least four members present. Two had recused themselves on the project last year but voted at the

Despite mounting pressure, the New Castle Town Board lifted the cap on commercial tenants and approved the "East Village" residential cluster, including affordable housing, in the Chappaqua Crossing proposal.

The votes were taken at a special meeting Monday night by all five board members to thwart the supermajority petition submitted earlier in the day by a group of homeowners who live near the former Reader's Digest site (see original story further down). That included votes by Deputy Supervisor Elise Kessler Mottel and Councilman John Buckley, who had recused themselves last year. Mottel did so in March 2010, citing a potential conflict of interest in her professional capacity as an attorney, while Buckley, who also works for Houlihan Lawrence, made his decison in September 2010, citing similar reasons.

Buckley said that "it was not my intention to be here this evening," while Mottel said she put aside her recusal reluctantly.

The council members approved rezoning - except Buckley, who abstained - for the 111 "East Village" condominiums and townhouses, including 60 townhouses to be taxed at a "fee simple" rate similar to single-family homes, and 51 condos, which include 20 units of affordable housing to help the county meet its federal mandate. The site is about 30.6 acres. However, they did not approve - a unanimous vote - the 88 condo units for the 29.4-acre "North Village" cluster.

In lifting commercial tenant cap, the board voted unanimously to get rid of a limitation in the zoning that only allowed for four commercial tenants, one of which had to lease at least 200,000 square feet of space.

The board also voted down Summit/Greenfield's proposal for broader residential rezoning at the site, which would have included both village clusters, as well as a rezoning local law that would have raised the maximum building height for a Multifamily Planning Development (MFPD) to 55 feet. Both votes were unanimous and included all board members.

The building height change would have enabled construction of the North Village condos, which were proposed to be in a range close to that height. In stopping the North Village, board members cited a desire to maximize the potential for commercial space on the property, thus helping the town support its commercial tax base.

Victor Siber of Cowdin Lane, a neighbor adamantly opposed to the project and one of 39 homeowners who signed the supermajority petition, blasted the vote, calling it illegal. He said legal steps were not out of the question.

Clinton Smith, the town's attorney, explained that the decision to use the rule of necessity was on "advice of counsel," which included himself, Lester Steinman (who normally serves as counsel at Planning Board meetings) and Robert Davis, an attorney from Byran Cave who is advising the town on this project.

Even though the Town Board has given some rezoning changes, Summit/Greenfield would still have to get Planning Board approval, Gerrard said.

In statements (attached here) made prior to when the recused members were recalled, Supervisor Barbara Gerrard, Councilman Robin Stout and Councilman Michael Wolfensohn framed the support for commercial as helping the town's property tax base.

Stout said that he supported lifting the tenant restriction  “to help build up our fragile commercial base.”

In her support for bolstering commercial at the site, Gerrard noted findings from the last year's report , which took a look at the town's property tax situation. The report noted that New Castle's commercial property share of the tax base is in the low single digits.

The board members supported the construction of 20 housing units for affordable use.

“Our zoning must support a range of housing," Wolfensohn said.

In his support for affordable housing, Stout noted the differences in backgrounds of people in town, including those affected by different phases of their lives.

“We welcome our new neighbors, because we are all in this together," he said. Stout also noted changes in diversity both nationally and in Westchester, and how they will affect the area.

“Yes, we want to be part of a small town," he said. "But we want that small town to be dynamic, and inclusive, and changing and thriving?"

Even if the 20 units do not wind up meeting the stipulation of the county's settlement with the federal government - resident Betty Weitz raised concern during the meeting that this would be the case with Summit/Greenfield's proposed unit - Gerrard explained that the housing could still meet the county's criteria under its own affordable housing guildeines.

In justifying their votes - their statements followed a majority speaking against the proposal at the public hearing - the three board members noted that they were working in the best interests of the town, and not just for what is popular.

“We knew this would be a tough decision and it would be tough to please everybody," Wolfensohn said. He also noted that the preliminary development concept plan (attached here) being approved would restrict the amount of buildable housing for the residential zone.

The language of that concept plan, which outlines the conditions of development for Summit/Greenfield, gives a maximum of 111 housing units allowed, and prevents the developer from seeking to build more than that. The concern that Summit/Greenfield would seek more housing on top of the East Village was stated at the public hearing by Rob Greenstein, who has opposed the residential as it was proposed.

“This position is not, and should not be a popularity contest," Gerrard said of her job.

The three members, in their pre-vote speeches, also responded to concerns from residents that the proposed housing would create problems for the community due to increasing school enrollment.

Stout said that phased in residential “Will not radically increase normal housing turnover," and said it is "inconsistent" to suggest both an increase in kids being generated from the site, and a "bulge," where seniors move into Chappaqua Crossing and sell their single-family houses to young families. These two arguments have been among those voiced by opponents of resident rezoning.

In making her case that school enrollment would not be an issue Gerrard on the Chappaqua school board's behalf by Robert Charles Lesser & Co., although she did not mention it explicitly. The study, estimated either 127 or 198 new students moving into the district based on two scenarios, assumed that 55 percent of buyers for Chappaqua Crossing would already live in the district, a number that the supervisor said in based on data for movement within Westchester County.

“I fail to see how data that residents who move from Yonkers to Dobbs Ferry, or from White Plains to Somers, can be extrapolated to justify an assumption about the Chappaqua school district residents," she said.

Gerrard also criticized the use of the Random Farms housing development in the study for comparison purposes, stating that those housing units have between 4-5 bedrooms, versus the smaller-bedroom unit condos.

When asked for a reaction to the votes and what the status of the lawsuits against the town would be, Geoff Thompson of Thompson & Bender, a PR firm that represents Summit/Greenfield, wrote in an email: "We have no comment."

In early March, Thompson said that the Town Board's votes would not change the outcome filed by the developer against the town in late February. The state lawsuit alleged that New Castle had deprived the developer effective use of its property, to the point in which it had engaged in a virtual "taking" of the land. It seeks damages, compensation and handing over the property to New Castle. The federal suit also names Gerrard, Stout and Wolfensohn as codefendants. It alleges that the Fair Housing Act has been violated, with a claim that the town has obstructed attempts to build affordable housing within its boundaries. It also claims that the developer's right ot due process has been violated. 

The vote marks the conclusion of a major phase in a process that has gone on for six years, which began when Summit/Greenfield purchased the property from Reader's Digest in December 2004, according to the developer. Reader's Digest stayed at the site as a tenant for roughly six years, after it broke its lease due to a bankruptcy filing it made in 2009.

According to an environmental review summary of the project's history, in early 2005, the developer made its first proposal for a mix of commercial of residential space, winning a rezoning concession in June of that year, which shifted use in the commercial zone (known as "B-RO-2") from one permitted tenant to four permitted occupants, one of which had to take up at least 200,000 square feet. Summit/Greenfield had subsequently become frustrated with the cap, arguing that it was too restrictive in terms of attracting new office tenants.

According to town reivew archives, the developer first proposed a rezoning change allowing for a mixed residential/commercial use in 2005, known as a "Planned Campus" proposed, which the Town Board voted down in December 2006, citing concerns with proposed housing density, traffic and consistency with the Town Development Plan (TDP), its municipal-wide master plan. The developer's current application started out in 2007 with a proposed to build 278 housing units, plus a retention of 520,000 square feet of office space (called "the Proposed Action' in the process documents). That year, the board voted to make Summit/Greenfield subject the proposal to an environmental review, and named itself to be the "lead agency" in the review.

A Draft Environmental Impact Statement (DEIS) was submitted in 2009, and several iterations of a Final Environmental Impact Statement (FEIS) were submitted in 2010. The most major change of the course of the review came in a July 2010 FEIS revision, when Summit/Greenfield submitted a proposal for its most recent iteration of 199 units and a 622,000-square-foot office space retention (called "the modified project" or "Alternative I"). The Town Board during a late-night special meeting last month, and approved a findings statement at Monday's meeting, which simultaneously put a close to the environmental review.

Update, 8:58 p.m.:

After a public hearing, three town board members said they would vote to lift a cap on the number of commercial tenants that would be allowed at the Chappaqua Crossing development.

Supervisor Barbara Gerrard, Councilman Robin Stout and Councilman Michael Wolfensohn also said their intent is to vote in favor of the "east village cluster" which allows 111 housing units.

They announced they are opposed to the "north village cluster" which would include 88 units of housing. 

In reaction to the petition submitted tonight, which would require at least four members to vote for approval, the trio would invoke "the rule of necessity" so that the two board members who recused themselves last year could be called back in.

The board went into executive session after tonight's public hearing.

From the earlier report, a 6:55 p.m. post about the petition:

A petition that would limit the New Castle Town Board's voting ability on the proposed rezoning changes for Chappaqua Crossing to a supermajority has been submitted, Town Clerk Jill Shapiro and Town Attorney Clinton Smith confirmed.

The petition, which Shapiro said she received this morning, is applicable under New York State Town Law §265, which would require that the proposed rezoning local laws be passed by a three-fourths vote of the board. This translates to a minimum of four out of five board members having to vote in favor.

The matter is complicated because only three members - Supervisor Barbara Gerrard, Councilman Robin Stout and Councilman Michael Wolfensohn - are engaged in the process. Deputy Supervisory Elise Kessler Mottel and Councilman John Buckley each recused themselves from review last year, citing concerns over the potential for conflict of interest in relations to their primary jobs: Kessler Mottel as a attorney, and Buckley as a Houlihan Lawrence realtor.

The petition is valid if at least 20 percent of property owners adjoining the former Reader's Digest site sign it. One of the most notable signatories has been the Chappaqua Central School District Board of Education, which  to sign.

Tonight's public hearing on the rezoning changes, which include deciding on whether to create residential rezoning to enable a proposed 199 units, as well as lifting the current four-commercial-tenant restriction on the commercial zone, is still going on at 7 p.m. There is no word yet as to how the Town Board will respond. The agenda for tonight indicated possible votes on the rezoning. for a primer on tonight's meeting.

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