Taxing Questions and The Jefferson Brownfield

The Town of Greenburgh has just posted on its website the results of Texas based Tyler Technologies'  reassessment of all classes of real estate in Greenburgh. 

According to a revised email from Supervisor Paul Feiner, traditionally a reassessment results in one third of the taxable properties increasing in market value, one third staying the same and one third decreasing in market value.

For unexplained reasons, this rule of thumb did not operate in Greenburgh.

For example, The Jefferson site is now vacant land. According to the developer's filings, it contains just over 10 acres. However, according to Supervisor Feiner, in Greenburgh, 3% of the vacant land decreased in value, 59% stayed the same and 38% increased in value.

The last tax assessment was done over 60 years ago in 1956. These figures lead to a number of questions:

How does vacant land in Greenburgh decrease in value over half a century?

How does vacant land in Greenburgh not increase in value in over half a century?

What accounts for 59%  of the vacant land in Greenburgh being assessed at the same  rate as in 1956?

If you compare the vacant land tax assessment percentages with Greenburgh's commercial property, these are the changes in value as of the July 1, 2015 valuation date:

Commercial Property / Vacant Land                              

40% decrease / 3% decrease                                           
47% stayed the same / 59% stayed the same                               
12% increase/ 38% increase                                          

Now lets compare these numbers with condominiums/coops:

14% decrease
82% stayed the same
3.4% increase

Accordingly, 96% of condo/coop owners experienced either no increase or a decrease in their assessments.

When you compare condominiums/coops with single family houses, the numbers are far worse for single family homeowners:

24% decrease
42% stayed the same
34% increase

In other words, 68% of single family homeowners received either no increase or a decrease in their assessments while over a third received an increase.  Given that both classes of property are residential, and the purpose of the reassessment (which costs millions of dollars) is to create tax fairness, how is this discrepancy possible?

The answer is that condominiums and coops are not assessed at full value (as are single family homes). Instead assessments of these units are based on their value as rental units (something that could, in the case of condominiums be changed if the Town adopted the Homestead Option  - which the Town Board elected not to do).  

It follows that The Jefferson, a straight rental, if built, will generate property taxes at the lowest rate of residential assessment (and conversely, they, like condominium and coop owners, will be subsidized by the owners of single family homes, which in the case of the Rivertowns and most of Greenburgh, are the majority form of residential home ownership). 

Readers are encouraged to look at the recent facebook or website posts of the Edgemont Community Council for specific examples of this property tax subsidy. edgemontecc.com

Moreover, unlike in Greenburgh, the Scarsdale Forum issued a study of the issue for its Village Board favoring the adoption of the Homestead Option. www.scarsdaleforum.com/reportsPublic.php (open link and scroll down to the Homestead Tax Report link). 

However, the Village Board, after reviewing the Scarsdale Forum report and having at least two public hearings, ultimately decided not to adopt the option as it essentially targeted a handful of condominium owners and would only result in a $99 savings for single family homeowners. 

In contrast, Greenburgh has thousands of cooperative and condominium units all of whom continue to enjoy the tax subsidy which is permitted under State law. It can only be changed if the Town adopts the Homestead Option (and again, this only applies to condominiums and not cooperatives). 

Parenthetically,  the availability of the Homestead Option proves that the distinction between condominiums (which are sold in arms lengths transactions where the price is public knowledge and thus available to the Assessor to determine their true market value) and single family homes (which are assessed on market value) is entirely artificial. 

Even if the distinctions between condominiums and single family homes are factored in, the way to achieve tax fairness is to assess condominiums at some fraction of their market value and not at their potential rental income value.  

The Jefferson site itself has an address of One Lawrence Street. However, when you plug in that address on the Tyler database, only two parcels appear (the owner, of course, being Azko Nobel)

Results

Click rows to view property details

Displaying 1 - 3 of 3

Parcel ID▲	Property Address	Location	Owner	JUR
8.370-265-2	0 LAWRENCE ST	ARDSLEY	AKZO NOBEL CHEMICALS INC	5526
8.370-265-4	0 LAWRENCE ST	ARDSLEY	AKZO NOBEL CHEMICALS INC	5526
8.370-267-3	2 LAWRENCE ST	ARDSLEY	2 LAWRENCE PROPERTIES INC	5526

When you look at these two parcels, the first is listed as consisting of .70 acres (with an assessment of $35,000) and the second is listed as being 1.79 acres (with an assessment of 89,500).

What happened to the remaining eight (8) acres? This question will be posed to Tyler for a response.

In addition to the lower rate of assessment for rental properties, a notable point was made by one of the speakers at the second scoping session that if you permit the One Lawrence Street site to become completely residential, you forego the opportunity for at least half a century or more  (the anticipated life cycle for The Jefferson buildings) for either industrial or commercial development on the site.

The chart below from the Town Assessor's section of the Town's website showing how to calculate an assessed value of a residential and commercial property in 2015. As the chart shows, in Greenburgh, commercial property is taxed at a higher rate (3.33%) than residential property (2.61%):


Property Class      Assessed    Value rate      
Residential           16,500        2.61%       = *
Commercial       125,000        3.33%       = **

* $16,500 divided by 2.61% =  $632, 183
**$125,000 divided by 3.33% = $3, 753, 753

However, a condominium in Greenburgh worth $632, 183 would have a tax assessment of nearly 50% less than a single family house with equal market value in the same Town!

Not only is the developer of The Jefferson enjoying being assessed at the lower Income Approach for its property  (even though it is a luxury property with high end condominium features),  but its tax rate will be at the lower residential rate than if the parcels were developed for commercial use.

As explained in prior posts about the Brownfield Cleanup Program, the developer will be getting a further tax subsidy of  anywhere between 30 to 40% of its remediation and development costs from   New York State taxpayers under New York State's highly controversial Brownfield Cleanup Progam.

As Marvin Gaye, in his 1965 hit song written by Smoky Robinson and the Miracles sang- Ain't That Peculiar? (kudos to Greenburgh's Hal Samis for the song tip).

In determining whether The Jefferson is a positive or negative for our community, it is increasingly clear that at nearly every level of analysis, The Jefferson is primarily good for the developer and a danger to the life, health, safety and quality of life of Greenburgh residents AND ITS TAXPAYERS.

Next Stop.... Yonkers?

In the February 19, 2016 edition of the Rivertowns Enterprise, Kris DiLorenzo’s story entitled “Objections pile up against The Jefferson,” which recapped the second Jefferson DEIS scoping session with the Greenburgh Town Board ends as follows: “Bill Hirschman expressed succinctly one objection to the Jefferson: This is going to turn Ardsley into an extension of Yonkers.”

It is not readily clear what this means.  Does it relate to the housing desegregation litigation which was depicted in the recent acclaimed HBO mini-series “Show Me A Hero” which arose out of the controversial case known as “United States vs. Yonkers?” Or does it refer to the longstanding and legitimate concerns of residents of outer ring suburbs like Ardsley about the presence of large multi-family developments in areas traditionally populated by single family homes? Before it was outlawed as an illegal real estate practice, sellers of homes in Northwest Yonkers advertised their homes as being located in "Hastings Vicinity."  Perhaps Yonkers should take a page from North Tarrytown (now called Sleepy Hollow) and re-brand itself as apparently saying your community will be like Yonkers is suburban code for something bad.

Yonkers is a city of  200,000 inhabitants covering a land area of approximately 18 square miles. In contrast, Ardsley, a village, is just over one square mile in size, with a population of roughly 4500 residents. Outside of perhaps the weather, Yonkers is vastly different from Ardsley by any conventional measure – demographics, government structure, per capita income, educational levels, transportation (Yonkers is now served by four train stations on the Hudson Line (Yonkers, Ludlow, Greystone and Glenwood) and Crestwood (which uses a “Tuckahoe” address) on the Harlem Line while Ardsley has no train stations.  Yonkers has two hospitals, two colleges (Sarah Lawrence (which uses a Bronxville address) Westchester Community College which has an extension in the Cross County Center shopping mall) and a museum (the Hudson River Museum). 

Yonkers, being located on the Hudson, also has an active kayak club (Yonkers Paddling and Rowing).  In addition, Yonkers has several religious seminaries such as the Academy for Jewish Religion, St. Joseph's (Roman Catholic) and St. Vladimir’s (Christian Orthodox).  Yonkers is also the home of a casino, a racetrack, a marathon race, a marina and the now restored Persian Gardens of Samuel Untermeyer. Ridge Hill (whatever you make of it coupled with its history of being approved only after a City Council Member was bribed to change her vote) is located in Yonkers (as well as the trifecta of Costco, Stew Leonard’s and Home Depot) and a good portion of the local traffic boogieman – Central Park Avenue, which also cuts through Edgemont in Greenburgh on its way north to the City of White Plains where it ends at Tarrytown Road (Route 119) near the City Limits Diner. Of course, to get from Ardsley to Yonkers, you have to pass through a portion of Hastings-on Hudson or the section of unincorporated Greenburgh having a Hastings-on Hudson postal address near the Mount Hope Cemetery which is known as Donald Park.

What sections of southwestern Yonkers once had is what the developer of The Brownfield at Saw Mill (which in true real estate fashion has been renamed the The Jefferson at Saw Mill) falsely claims their project to be -  a transit oriented development.  Wikipedia defines transit oriented development as follows:

“A transit-oriented development (TOD) is a mixed use residential and commercial area designed to maximize access to public transport, and often incorporates features to encourage transit ridership.”

This is as far away from a description of The Jefferson as you could imagine. 

As explained in a fascinating article appearing in a 2004 edition of the National Railway Bulletin entitled "The Phantom Spur - Retracing the Vanished Getty Square Branch of the Putnam Railroad", former Yonkers resident and historian Daniel Abraham Klein, whose original home on Saratoga Avenue in Yonkers backed up to what his mother called “the tracks,” detailed the saga of a rapid transit spur which was an early example of true transit oriented development.

As Klein explains, the goal of the Yonkers Rapid Transit Railway, formed in 1879, was to build a three mile stretch of railway from a junction in Van Cortlandt Park (and not far from the oldest building in the Bronx, the 1748 Van Cortlandt Mansion) to Getty Square in downtown Yonkers. “From the start,” he writes, “the plans for the Yonkers Rapid Transit Railway had anticipated the development of new residential communities along the route. The Park Hill, Lowerre and Caryl sections of Yonkers have in fact been described as among the earliest planned suburban areas in the country.”

The picture below is from the 1912 catalog of Park Hill homes developed by builder-architects the American Real Estate Company showing its proximity to the Putnam Railroad. According to Klein in his Phantom Spur article, “Park Hill was linked to the Getty Square rail line in a picturesque and dramatic fashion. An “incline elevator” transported passengers by hydraulic-powered tram from the Park Hill station at South Broadway up a steep 107-foot hill to Alta Avenue.The incline was anchored at either end by two depots built in 1893, the lower one in Neo-Tudor style in the upper one in the late Victorian “shingle style.”

The spur serving these communities was discontinued after roughly 55 years of operation in 1943 for, as explained by Klein, primarily economic reasons. In a related article appearing in the Spring 2009 edition of The Yonkers Historian, “Yonkers versus United States:” The Epic Legal Struggle to Save the Getty Square Railroad Branch, Klein relates the twists and turns of the attempt by the Putnam Railroad to close the Getty Square spur (and sell it for scrap to ostensibly help the war effort) and the numerous ways the City of Yonkers and others, including commuters, tried to prevent it. The legal dispute was the subject of two appearances before the United States Supreme Court which ultimately decided in favor of the railroad. In his articles, which double as travelogues on a search for the physical remains of the now phantom spur, Klein discovers that “the tracks” behind his childhood home were the remnants of the portion of the spur that ran between the now vanished Caryl and Lowerre stations.

Ardsley and Yonkers still do not have much in common. What they do share is the loss of true transit oriented development with the closing of the Getty Square spur (and in the case of Ardsley, the entire Putnam Division which had depots in both the Chauncey section of Ardsley and Ardsley itself (although some contend the station was actually in Dobbs Ferry)) and its phony appropriation by the developers of the Brownfields at Saw Mill where transit oriented development (let alone the amorphous “bicycle oriented development”) only exists in their marketing propaganda.

In the February 23, 2016 edition of The New York Times, it is reported that Bob Dylan has long been the most cited songwriter in judicial opinions and that even the late Justice Antonin Scalia, who loved opera, also had a soft spot for Bob Dylan.

As Dylan sang in his epic song poem – It’s Alright, Ma (I’m Only Bleeding), a track on his Bringing It All Back Home album (Columbia Records, 1965) – “propaganda, all is phony. “

As Ardsley Mayor Peter Porcino noted at the final scoping session, he knows of no plans by the Town of Greenburgh, the County of Westchester or the State of New York to create any form of new transit facilities at the location where The Jefferson is proposed to be built. At best, and its a poor substitute, the developer suggests it might provide a trolley to transport its Jeffersonistas to the train station. 

Here is a better idea - let The Jefferson vanish from our midst like the Getty Spur until its promoters can come up with a true transit oriented development as was done in Yonkers over a century ago.

NYS Government Dysfunction Strikes Greenburgh - The Controversial Brownfields Cleanup Law Part 2

In 2003, legislation was signed into law by then Governor George Pataki whose purpose was to turn unproductive brownfields, to wit, contaminated sites left behind when industry was globalized, found mostly in upstate New York, often in low-income neighborhoods, communities of color, and on formerly industrial waterways, into job machines. This was to be accomplished by giving tax credits to developers to recover their costs for both environmental cleanup and subsequent construction at the site to be remediated. Some of the thinking behind the brownfield cleanup law was to relieve development pressure on “greenfields” such as farmlands and other undeveloped land in order to preserve open space, stop urban sprawl and spur re-development of these former industrial sites.

The plan sounded wonderful. A proverbial “win win.”

The 2003 law came after a decade long battle in New York’s legislature to address various issues regarding the cleanup of New York State’s thousands of brownfield sites. When the law was signed, Governor Pataki, as reported by The New York Times said: ''This historic legislation represents a victory for all New Yorkers. By taking steps to protect our environment, this legislation will generate new opportunities for economic growth, bringing new jobs into communities around the state, while protecting the health of all New Yorkers.''

Hopeful notes were sounded by members of the legislature as also reported in the same New York Times article on September 17, 2003:

''If we can energize Rochester, Troy, Syracuse, Buffalo, Albany, New York City, all of the cities with brownfields in the inner cities, and get those inner cores of these cities back working, this will be huge,'' said Senator Carl L. Marcellino, the chairman of the environmental committee in the Senate.

But it didn’t turn out that way. Now Ardsley, its school district, the nearby villages of Dobbs Ferry and Hastings-on-Hudson and the Town of Greenburgh are caught in the cross-fire of Albany’s typical dysfunction in creating a program that, by and large, has failed to meet its stated goals of cleaning up toxic sites and getting New York State’s cities back to work. Instead, as with The Jefferson, New York’s brownfield law continues to subsidize luxury development in an area of the State that suffers neither high unemployment nor economic distress.

In the 2013 study of New York state tax credits (discussed in Part 1 about New York’s Controversial Brownfields Cleanup Law), researchers Donald Boyd of the Nelson A. Rockefeller Institute of Government and Marilyn Marks Rubin of John Jay College, found that in almost 10 years after the 2003 law was signed, only 133 of the state’s estimated 10,000 brownfields sites were cleaned up through the tax incentives. The report concluded that “The brownfield credits were intended to remediate and restore blighted land, but they have functioned more as a real estate development program.”

In 2014, Katherine Nadeau, the policy director of Environmental Advocates of New York, in testifying about the impact of Governor Andrew Cuomo’s proposed executive budget elaborated further:

“Tens of thousands of toxic sites blight our neighborhoods statewide – they can be found in nearly every county, municipality and legislative district. Brownfields create an unsafe environment, hinder our ability to attract new industry, and reduce property values.

The State’s Brownfields Cleanup Program was designed to clean up these sites while directing development away from ‘green fields’ and investing in communities. Unfortunately, it has not produced results for areas most in need of public funding – particularly Upstate, communities of color, or those with high unemployment or poverty rates. In fact, an Environmental Advocates’ November 2013 analysis found that New York State had cut checks totaling more than $1.14 billion to clean up just 131 sites. Locations were often in wealthy areas with a robust building market, and many of these projects would have occurred based on the site’s attractive real estate value regardless of the existence of the Brownfields tax credit.”

Notably in the 2013 Boyd/Rubin report, the following startling observations were made:

“Fewer sites have been remediated under the (2013) brownfield program than under the earlier Voluntary Cleanup Program that did not offer tax credits. In almost ten years, 133 sites have been remediated at a cost of more than $900 million, compared with 212 sites remediated under the voluntary program. Despite reforms that were enacted in 2008, the credit will continue to cost hundreds of millions of dollars annually. The amount of expected credits not yet used exceeds $3.3 billion and will be a drag on future budgets. Credit-claiming is likely to remain highly concentrated and disproportionately focused in the downstate region.”

Of course, readers might notice the inherent tension in any brownfield cleanup law – is its chief purpose cleaning up contaminated land or one of stimulating economic activity?

To give just one illustration why New York State’s Brownfield tax credit program is controversial, the Boyd/Rubin report notes:

In 2013, the two largest credit programs — brownfield and film production unevenly benefited economic activity in New York City and other parts of “Downstate” New York. Approximately 59 percent of brownfield credits claimed between 2008 and 2012 were for projects in NYC where 44 percent of the state’s nonfarm jobs are located. Seventeen percent of brownfield credits were for projects in Westchester where (together with Putnam and Rockland Counties) six percent of NYS’s nonfarm jobs are located. The remaining 24 percent of brownfield credits were claimed for projects in the rest of the state where 50 percent of the jobs are located.

Not only are the NYS’ business tax credits concentrated among a few industries that are granted preferential treatment (film and brownfields accounting for at least 50% of the tax credits), they are also concentrated among a small number of taxpayers who account for the vast majority of tax credits claimed (i.e., essentially of the millions of tax returns filed in New York State, only a minuscule number of returns claimed the business tax credits).

Boyd and Rubin then cited several reasons why NYS’ Brownfield Cleanup Law was going to be both expensive and not meet its dual goals of promoting environmental clean-up and economic development which included, but were not limited to, the following:

1) Eligibility for credits was not limited to economically struggling areas of the state, or to projects that seemed unlikely to occur without the credits.

2) Unlike credits in most other states, they were not limited to a percentage of clean-up costs, but instead extended to virtually all site preparation costs and costs of buildings and equipment.

3) There was no requirement that the credit be deemed necessary for the redevelopment of a site.

As the Boyd/Rubin report further provides: “Not long after the credit program was enacted, the press noted instances of large credits associated with little remediation, or in areas that were healthy economically, or that were used by firms or people believed to be well connected, or that appeared unnecessary to induce redevelopment. For example, the retailer Ikea redeveloped a former Navy shipyard in Brooklyn and received a $19.8 million credit. The head of real estate for the company was quoted as saying, “From the Ikea point of view, it didn’t really change anything for us. We were going to do the cleanup anyway, the tax breaks are just a nice bonus.””

By 2015, the 2003 law, even after minor tweaks in 2008, was widely recognized as broken. In March 2015, Environmental Advocates of New York (EANY) issued its 4th report on NYS’ brownfield cleanup law Ripe for Reform.

In their Ripe for Reform report, EANY highlighted the key structural problem with New York’s law: “Currently, developers receive tax credits for both the cleanup of a brownfield and for redevelopment. It is the redevelopment credits that, by far, incur the greatest costs of this program. They are a needless giveaway to developers who do not need further encouragement to build in already competitive real estate markets. Since 2008, tax credits awarded solely for site cleanup assistance totaled $122,257,583. Comparatively, $797,946,541 (86-percent of total payouts) has been paid to developers as a percentage on the development value on the remediated sites. The structural deficiencies within the existing law favor costly developments in the state’s most competitive real estate markets over communities that are most in need of these public incentives.”

Among their recommendations for reform was the following:

Targeting tax incentives to communities most in need of public investment, through different gateways, to drive development to areas with high unemployment rates and those desperate to turn an abundance of brownfields into an economic engine.

The report concluded with the following: “In fact, areas of the state that would benefit most from an effective Brownfields Cleanup Program have been left out in the cold, while taxpayers foot the bill for a few high-end luxury developments in areas that would have already been cleaned up and redeveloped anyways.”

The key reform suggested by Environmental Advocates of New York (and seemingly part of Governor Cuomo’s reform package) was never included in the law when it was renewed in 2015. Undoubtedly convicted felons former Assembly and State Senate leaders Sheldon Silver and Dean Skelos, who both had strong ties to New York State’s powerful real estate lobby, were part of that decision.

Further, when the brownfield cleanup law came up for renewal in 2015, after over a decade of disappointing results and a growing concern over the cost, efficiency and fairness of the program, Thomas Abinanti, the New York State Assemblyman representing Ardsley and parts of Greenburgh, a long term supporter of New York’s brownfield cleanup law, who constantly touts his self-described strong environmental record in his newsletters, was otherwise busy promoting a reckless law providing parents with the right to decide whether to vaccinate their children against diseases that had been essentially wiped out in our lifetimes. At the same time he was seeking support for his “choose to vaccinate law,” outbreaks of measles started appearing in California where a similar vaccine refusal law had been passed.

However, while the 2015 renewal of the State’s brownfield cleanup law made a number of changes to address the problems with the law (albeit mostly targeted for developments in New York City and not Westchester County), the developer of The Jefferson filed its project with the Department of Environmental Conservation prior to the changes enacted in 2015. Accordingly, The Jefferson, if built, will receive tax benefits under New York’s pre-existing and highly flawed brownfield cleanup law.

New York’s brownfield cleanup law fails to require any meaningful public input (let alone sufficient public notice) prior to its consideration by the DEC. There is no requirement that a proposed project conform to smart growth principles of sustainable development or be located in an area that is served by adequate transportation networks and facilities. Brownfield development is handled quite differently in other states and other countries. In Germany, brownfields are developed at the outset with extensive public participation (not by using contact lists created by an out of state developer who posts “public” notices in the back of little read newspapers). Initial uses of brownfields are temporary to both maintain (and increase) property values and keep redevelopment options open for permanent use. This helps create positive public perception and place branding. Moreover, the focus of brownfield re-use is on creating new areas of innovation, places for clusters of related businesses, and incubators and connections for small and medium sized businesses which link apprenticeships and workforce training.

These are exactly the type of uses (in conjunction with Greenburgh and Westchester County’s existing biotech and other industries) envisioned in Greenburgh’s draft comprehensive plan for the site where The Jefferson is planned.For example, the nearby biotechnology headquarters of Acorda Therapuetics on Saw Mill River Road in Ardsley, employs several hundred persons.   Instead of this highly desirable use,  our community is being offered something there is no evidence it needs or wants – 272 luxury rental units with 438 parking spaces. Further, the proposed multi-family development will produce far lower taxes than a commercial occupant.  Additionally, the proposed intensive residential use will have adverse consequences for both the Ardsley School District and Greenburgh’s life safety support systems. In short, the proposed singular use of the existing property (depicted below) evidences a wholesale failure of the imagination to turn this location into something of great value for everyone and not just the developer. Instead, we are getting a subsidized Texas sized mess.

While we may never learn if the brownfield tax credits were the driving force behind the proposed development, it is a good assumption that the massive size of the project is linked to the generous tax credits New York State (and thus its taxpayers) gives to developers of brownfields. For example, down the street on Route 9A, on a parcel nearly the same size, but with no brownfield credits, the developer is building only 66 units at The Lofts.

It is a safe bet we are getting the “amenity rich” luxury multifamily development at One Lawrence Street, in part, if not in whole, because of New York’s flawed brownfield cleanup law. Accordingly, it would be more appropriate to name JPI/TDI’s project as The Brownfield at Saw Mill.

In the developer’s Expanded Environmental Assessment filed with the Town of Greenburgh, the tax subsidized Brownfield at Saw Mill is estimated to generate fourteen permanent jobs.

It is unstated if they will ride their bicycles to work.

New York State's Controversial Brownfield Cleanup Law - Part 1

 At the last night's scoping session before the Greenburgh Town Board, several issues were raised about the brownfield nature of the site where JPI/TDI seeks to build The Jefferson. A “brownfield” is a term used in urban planning to describe land previously used for industrial purposes which has been contaminated with hazardous substances as a result of prior polluting operations at the location. This accurately describes the site where the Jefferson is scheduled to be built.          

 As noted in an earlier blog post, it was revealed the developer will be entitled to certain tax credits from New York State in connection with the cost to bring One Lawrence Street up to environmental standards suitable for residential purposes as well as also being entitled to additional credits depending on its final project construction costs. 

Of course, this was not disclosed on their website which only announced they will be spending millions to clean up the site. While this may be true (and to date JPI/TDI has not started its investigation of the location to determine the scope of the contamination, a process that will take many months), all New York State taxpayers will be reimbursing a portion of these costs to the developer under New York State’s Brownfield Cleanup Law (“BCL”) (which is administered by the New York State Department of Environmental Conservation ("DEC").  To help understand the brownfield issues at The Jefferson site, we will, over several posts, and as the need arises, provide information about New York's controversial Brownfield Cleanup Law.

Introduction:

After the second scoping session was closed (subject to two (2) additional weeks to kept the record open for further comments from the public regarding the scoping document), Bob Bernstein, the president of the Edgemont Community Council spoke at length about “Xposure," an after school project funded by the taxpayers who live in the unincorporated section of the Town of Greenburgh such as Edgemont. As noted by Mr. Bernstein, no one was questioning the value of the Xposure program which, according to a New York Times article posted on Xposure's website, is a practical business program that exposes children to job interviewing skills, work etiquette, how to make investments and otherwise introduces them to the world of finance. 

What makes the Xposure program controversial is that, among other things, it is apparently serving only one school district in the Town of Greenburgh, Greenburgh Central. (Greenburgh, including the districts named after the villages, has eleven school districts). Mr. Bernstein's central point was that Town tax dollars should not be spent this way and he suggested the proper way to fund Xposure was to obtain grants from various agencies. In fact, the Xposure program in Greenburgh was originally funded primarily by grants from the Lanza Family Foundation, a local charity founded by philanthropist Patrica Lanza of Eastchester. However, when Mrs. Lanza passed away in 2014, the grants ceased. The Town then stepped in and fully funded the program which includes providing free buses from the Greenburgh Central School District to the Theodore T. Young Community Center (which is near Town Hall) where the Xposure classes are held.

On a historical yet clearly topical note, Mr. Bernstein's comments are well grounded. Along these lines, the Preamble to the United Stated Constitution (written in 1787) (and now taught in 5th grade under the Common Core), contains the following purpose: "To promote the general welfare." Even our framers were cognizant that government spending should serve all persons and not a select group. 

How taxes should be allocated was also on the mind of the late David M. Glixon, a noted editor and book reviewer, who lived on Prospect Avenue in Ardsley, when in a letter dated October 5, 1966 and published in the October 9, 1966 edition of The New York Times, he wrote the following to the newspaper’s editor concerning the then burning issue of the Vietnam War:

"According to a plan just approved by the Senate Finance Committee, taxpayers would indicate on their returns whether they wish a portion of their tax to be allocated to Presidential campaign funds. 

It is indeed high time we had a say on the use of our money. But why stop at campaign funds? How about a box to be checked if the taxpayer prefers that his taxes not be used to finance an undeclared war?"

What are Tax Credits and Are they Effective? 
In November 2013, a report was prepared for the New York State Tax Reform and Fairness Commission entitled: New York State Business Tax Credits: Analysis and Evaluation. A tax credit is a tax incentive which allows certain taxpayers to subtract the amount of the credit from the total tax they owe the State. The report's main focus was an analysis of New York State's two largest tax credit incentives - the most expensive one being its brownfield cleanup program followed by the film industry.

In the Executive Summary the following appears: 

           "In the 2013 tax year, New York State (NYS) provided an estimated $1.7 billion in 50 business tax credits to encourage taxpayers to engage in specific activities. Business tax credits and other incentives have laudable goals such as encouraging economic development statewide; promoting job growth in distressed areas; and furthering the state’s social, housing, and environmental policies. Economic development officials value business tax incentives as tools needed to compete with other states. There is, however, no conclusive evidence from research studies conducted since the mid-1950s to show that business tax incentives have an impact on net economic gains . . . above and beyond the level that would have been attained absent the incentives." (bold supplied). 

What prompted the 2103 report was a concern that the number and costs of the tax credits offered by New York State were escalating and the need for reform was apparent especially in light of several highly questionable uses of, for example, brownfield cleanup credits in conjunction with the development of luxury housing in New York City and Westchester County, such as the Ritz Carlton in White Plains.

However, and in line with the observations on tax policy made in the Introduction by Messrs. Bernstein and Glixon, the report's proposed reforms were directed at the credits themselves, not the underlying activity they were seeking to address. The question for the legislature (and in fact the taxpayers) is whether these goals the credits sought to address are best implemented through the tax code by the use of business tax credits including tax credits for cleaning up brownfields. Of course, as the Executive Summary indicated, despite a half century of experience, there was no conclusive evidence that tax credits were either economically sound or good public policy. In other words, it seemed that the tax credits, by and large, ended up subsidizing select forms of business activity that would have occurred regardless of the tax credits.

The Jefferson at Saw Mill and the BCL

The first time the public heard of The Jefferson at Saw Mill and its connection with New York’s Brownfield Cleanup Program was found in a Public Notice published in the Journal News (reproduced below). Did you see it?  While it appears this notice complies with BCL regulations, the posting of a public notice in a newspaper that doesn't focus on Greenburgh (such as either the Rivertowns Enterprise or the Scarsdale Inquirer) about the proposed clean up of a hazardous waste site will undoubtedly give rise to head shaking.  

Not surprisingly, the DEC’s Project Remediation Bureau did not receive any comments to The Jefferson’s application to enter the Brownfield Cleanup Program.  Perhaps the Bureau might have been advised of JPI/TDI’s consent decree with the United States Justice Department regarding their violations of the federal fair housing law and the payment of a record fine in that case.   But we cannot fault the developer if they followed the law as it exists. 

Here, JPI/TDI is no different from any other property developer including presidential candidate Donald Trump, who, at the outset of the Republican presidential primary debate process, when asked about the serial filing for protection under the federal Bankruptcy laws by his companies, unapologetically declared "Four times I've taken advantage of the laws, and frankly so has everyone else in my position."

      

The Gas-Masked Train Invasion in Ardsley

On a snowy Tuesday morning, on February 7, 1939, at 8:00 a.m., a diverse group of twelve veteran Ardsley rail commuters (who regularly took the 8:31 a.m. "Bankers Special"  train to work from the Putnam Division's then existing Ardsley rail station), met at a drug store near the station and donned gas-masks. The gas-masks had been obtained the night before from WW1 veterans, volunteer firemen, and others. Under a police escort, they marched to the train platform with one member of the group hold a large hand painted placard reading "Why go to France and be gassed? It does happen here-on the Putnam Division. Ask the boys who ride the stinky!"

Actually, the protest included several women including Mrs. Lorraine Ruprecht who was an art director and the first female to don a mask and Blaise Recca, a production manager for a publishing firm who made the placard. Other commuters who wore a gas-mask included a Greenburgh councilman, a Wall Street broker, an electrical engineer and various others who worked in the insurance and publishing fields.

When the train reached the station, the gas-masked commuters boarded the train from the snow-swept station where they were subsequently joined by two college students from Briarcliff Manor who joined in the uprising and donned gas-masks. Later that evening, the group wore their gas-masks on the return trip home.

What was this gas-masked brigade event all about?

As explained in several newspaper accounts of the event, the Ardsley commuters (who resided in Ardsley, Dobbs Ferry, Greenburgh and other nearby towns) were objecting to the gasoline engine powered trains the railroad was using on its Putnam Division runs whose fumes made the riders nauseous. Heat was provided by a coal burning stove which added to the misery of the railroad's irate customers.

As reported in the February 6, 1939 edition of The New York Times under an article entitled "Gas Mask Brigade to Invade Trains," the train invasion was part of a plan to embarrass the railroad into providing steam trains as was done on the earlier "Workers' Special" which left at 8:02 a.m.

As we get set for the  upcoming Wednesday, February 10, 2016  second scoping session on The Jefferson which begins at 7:30 pm at Greenburgh Town Hall, let us recall our Ardsley forerunners who stood up seventy seven years ago in February (see picture below) to oppose the gasoline powered machinery of that era as we are doing in 2016 by opposing JPI/TDI's Auto-Oriented Development on Lawrence Street with its 438 parking spaces.

Despite their attempt to spin their 272 unit development as beneficial for our community, JPI/TDI cannot mask the truth that their project is, as the Village of Hastings on Hudson recently indicated in its comments to the proposed scoping document, not only too large by a factor of 300%, but, one that guarantees further burdening of the already strained Saw Mill River Parkway. In a word, the project, as proposed, just like the Putnam Division's 8:31 a.m. gasoline powered train, stinks!

Historical Amnesia at The Jefferson

If  you visit the archives of the Ardsley Historical Society, you will learn that Windsong Road was the name of the ancestral home in Whitehaven, Tennessee (now part of Memphis) of female broadcast pioneer Irene Beasley who at one time owned a 50 acre parcel in  Ardsley along Heatherdell Road.  (Elvis's Graceland is also located in Whitehaven).  Ms. Beasley, who after her career in radio ended, later operated a real estate brokerage office at 486 Ashford Avenue starting in 1960, donated the land that became Windsong Road to the Village of Ardsley on the condition that the street always kept that name. Her sister was named Agnes Conners.  That is where Agnes Circle comes from. Ms. Beasley's home in Ardsley belonged to Captain Israel Honeywell. Inside the house is a mural depicting hundreds of years of history of the house which she also called Windsong.   Ms. Beasely is the subject of an online exhibit hosted by the University of Maryland about female broadcasting pioneers.  Irene Beasley

King Street (off Ashford) is also in the Village of Ardsley.  It is named for the  King Pickle Works founded by Capt. John King. As stated in the Spring/Summer 2011 edition of the newsletter of the Ardsley Historical Society as told by a relative of the King family: "By inheritance and intermarriage, the King family became identified with the civic progress of Ashford-Ardsley. To mention but a few, Captain John King gave the land for the Methodist Church, Ralph’s uncle, John Peene King, served as the first local judge and was Sunday School Superintendent for many years. Ralph’s mother played the organ at Church. His uncle, Capt. George W. King, was a Civil War veteran and lived near our Little Red School House."

As has been written earlier on this blog, The Jefferson is located in the Chauncey Fire Protection District. Right across the street is a retail building called Chauncey Square where the New York Sports Club and Oasis Day Spa are located.

So who was Chauncey? If you study the linked map of Greenburgh from 1867 and enlarge it Greenburgh 1867

and look south of Ashford (Ardsley's name prior to its incorporation as a village in 1896), you will see the following names of what are most likely farms or estates in the general area where Chauncey Square is located : Henry Chauncey, Lawrence, and Danforth, the latter being current street names in the same area. The address of the Jefferson is One Lawrence Street. You can also see King's pickle factory on the map. 

The Putnam Division of the New York Central Railroad (the "Put") ran along what is now the South County Trail from the Bronx to Brewster in Putnam County. The chief drawback of the Put was its lack of a direct connection to Grand Central Station.  Nevertheless, at the time of its demise, Ardsley (which was known for nearly 60 years from the early part of the 20th century till 1958 when the last passenger car left Ardsley's train depot, as "Ardsley on Putnam") had a 300 member commuter group of riders.  A wonderful photograph of that sad event can be found in Ardsley's Village Hall. 

The station just south of Ardsley on the Put was Chauncey. Along the South County Trail, there is a historical marker recalling the station.  An online rail buff site describes Chauncey as follows:

"Originally known as Odell's, Chauncey was at one time among Westchester's most promising suburban communities. Named for Henry Chauncey whose estate was nearby, the village had its own hotel, post office and fire house.

Industries served by the "Put" at this stop included the Brussels Tapestry Company and Stauffer Chemical. Passengers traveling to and from Children's Village, founded as the New York Juvenile Asylum, also used the Chauncey Station."

An illustration of  what Chauncey was like can be found in the August 18, 1928 New York Times (under Social Announcements) which led off with the planned wedding on September 15 of Katherine Stuart Douglas to Henry Percy Douglas at Glenalia, the summer home of the bride's parents in Chauncey, NY.

As noted in "Pictures of Our Past," by Patricia and Fred Arone, a book about Ardsley, "a picturesque woodland area mid-way between Ardsley and Chauncey was known to local residents as Carroll's Woods. A small gazebo added to the charm of the setting."

A 1963 New York Times article about the closing of the post office in Chauncey revealed that Thomas Carvel lived in Chauncey.  Carvel's ice cream machine patents all used his Chauncey, NY mailing address. (Chauncey's homes (now having a Ardsley postal address) are located in the various Winding Roads section of unincorporated Greenburgh which still retains its rural nature). 

Even a newly built subdivision of single family homes in this section of unincorporated Greenburgh is called Chauncey Estates. 

So how does the name "The Jefferson" fit into the area's interesting history? It doesn't. 

As it turns out, for unknown reasons, JPI/TDI, the developer of The Jefferson, homogenizes all of its developments  under its "Jefferson" brand to wit, Jefferson Plaza in Farmingdale and the Jefferson Residences in White Plains. 

We hope it is not derived from Jefferson Davis, the President of the Confederate States of America who had deep connections to Texas initially as a soldier in the Mexican War (where he was commanded by Zachary Taylor (who subsequently became the 12th President of the United States)) which began in 1846 and ended with the recognition by Mexico of US sovereignty over all of Texas north of the Rio Grande. In fact, Texas has 32 counties named for confederate soldiers including "Jeff Davis" County. Texas still has a state holiday called Confederate Heroes Day which is celebrated on January 19.

Alternatively, the use of the Jefferson brand may be  intentional for as many local residents and current and former Ardsley officials have observed, the proposed 272 unit project will radically and existentially change the character of Saw Mill River Road and the Ardsley School District.  

As Robert Apter of Ardsley aptly observed in his terrific letter to the Rivertowns Enterprise last week, the  name "Jefferson" should only be known in Ardsley "as being our third President and the title character of a television show from 1975 to 1985."

Let's hope the developers of The Jefferson are reading the Rivertowns Enterprise in Irving, Texas.  

Incidentally, Irving , Texas is named for famed Amercan writer Washington Irving who apparently never set foot in Texas. 

Texas Shill Game

If you watch the Town Board's work session prior to the first scoping session, you will learn the developer of The Jefferson (JPI/TDI) asked the Town Board  to close the  initial scoping session after the public hearing which would  have foreclosed the second public scoping session now scheduled for February 10, 2016.

We wonder which of the following "owners' values"  (listed below) JPI/TDI was channeling when they sought to limit the input of Greenburgh residents which environmental impacts should be included in the final scoping document:

THE OWNERS’ VALUES

• Be faithful & obedient to God
• Be respectful to & help develop all people
• Be committed to excellence
• Be committed to service
• Be a person of character
• Grow profitably

We are certain first and foremost is the one about profit. 

That JPI/TDI doesn't  care much about the environment is not surprising  - its former CEO was one of the largest campaign contributors to former Texas Governor Rick Perry who maintains that climate change is a hoax. As noted in prior blog postings, The Jefferson project does not appear to have a solar energy component and it is not seeking LEED (Leadership in Energy and Environmental Design) certification, which is the hallmark of green building construction. 

In their various filings with the Town, JPI/TDI is presenting The Jefferson at Saw Mill project as  being a Transit Oriented Development ("TOD") because of its proximity to  the South County Trail which its tenants would use to commute to work.  This nonsense was thoroughly discredited at the first scoping session. It is also the case that JPI/TDI is doing virtually nothing to improve the infrastructure of the South County Trail. Instead it seeks to exploit it as a marketing gimmick. This is nothing short of green "bait and switch."

According to the "experts" at JPI/TDI, the intended residents of The Jefferson are mere millennials who want to live in TODs near walkable downtowns.  This would hardly fit the site they have chosen for The Jefferson (at the corner of Lawrence Street and Saw Mill River Road) which is almost three miles away from the Dobbs Ferry train station. Only one Bee Line bus (the 5 line) appears to service the location.

So it is rather curious to learn that JPI/TDI's current counsel (Neil Alexander of Cuddy & Feder) who is telling us and the Town Board that The Jefferson is the right project (even going so far to claim that no one they met with before presenting it for public consumption was against it) co-wrote an article published in the  November 3, 2015 edition of The New York Law Journal entitled 
"Land Use and Planning: Preventing Flight of Millennials" in which he claims that "Unless suburban municipalities plan to attract the millennial generation, employers will not relocate to the suburban areas."

He then asserts that in order to compete with the the "aesthetic draw to New York City," 
"Westchester, Fairfield, Long Island, and other suburban municipalities must reexamine their local planning goals and transition from "bedroom" communities to communities that facilitate an efficient working and living environment."

The accuracy of these contentions (unlike climate change) is highly debatable. If you look at study after study, the truth is no one knows from year to year what the so called millennials (including the millennials themselves) want or where they desire to live. Moreover, businesses expand or contract for many reasons. Office parks were once the flavor of the day. Now, as is true with, for example, the relocation by General Electric out of  suburban Connecticut, they want to be near a technology hub like the City of Boston. Housing for millennials was not a factor. 

Even before the millennials were discovered as a marketing tool to get municipalities to bend over backward to accommodate developers and ignore the quality of life concerns of local residents, Westchester County and  in particular Greenburgh (in Ardsley and Tarrytown) developed a strong bio-tech presence. Decades earlier and at the very location where The Jefferson is planned to be built, giant chemical companies like Ciba-Geigy, Stauffer Chemical and Azko Nobel had extensive manufacturing and research facilities. Greenburgh Town Board councilmember Diana Juettner's late husband, Paul Juettner, was a patent attorney for Stauffer Chemical. This is why the property is zoned for General Industrial use.

Alexander then writes about JPI/TDI's recent TOD project in Farmingdale, NY in Nassau County on Long Island, Jefferson Plaza where he was also their legal advisor:

"Most important to the attraction of millennials, the development is located diagonally across the street from the Farmingdale train station of the Long Island Rail Road, and is also one block away from Farmingdale's Main Street retail corridor that includes a variety of charming shops and restaurants."

Nevertheless, Alexander and JPI/TDI (whose East Coast office is in Irvington across the street from its train station in true TOD style), are pushing the fiction that The Jefferson,which is nowhere near a train station or a block away from "charming shops and restaurants" is both necessary and good.  

Yes, its good for those who are peddling the snake oil that The Jefferson will help our community "facilitate an efficient working and living environment."

At the next scoping session, lets ask that it include the cost of giving these hucksters a one way ticket  back to Irving, Texas.

Who Owns "The Jefferson at Saw Mill" site?

At the first scoping session to determine what environmental issues and impacts will be studied with respect to The Jefferson at Saw Mill, the developer's counsel (Neil Alexander of the law firm of  Cuddy and Feder LLP) was asked whether his client JPI/TDI (the developer) owned the One Lawrence Street property where they want to build The Jefferson.

For unknown reasons, Mr. Alexander seemed to hesitate in answering the question which was repeated several times.  The answer, of course, is no. The property is still owned by Azko Nobel, N.V., a Dutch multinational which is active in the fields of decorative paints, performance coasting and specialty chemicals.

Mr. Alexander did note that even though his client was not the current property owner, they have the right to proceed with their application to seek site plan approval of The Jefferson project from the Town Board.

That is true.

It is customary for a developer to enter into an agreement to buy a parcel conditioned on land use approvals by the municipalities and other governing authorities where the property is located or who have jurisdiction over the site. In the case of The Jefferson, there are many required approvals by various municipalities and government departments. For example, underneath the site is a sewer pipe overseen by the Westchester County Department of Environmental Facilities. The developer's construction plans must be approved by that department and there may even be additional on site inspections if any work ever starts.W Moreover, depending on what happens with the Town Board, approvals for various aspects of the project will have to be obtained from Greenburgh's Zoning and Planning Boards such as variances for the proposed height of the buildings.  A variance is a permitted deviation from the rules a municipality applies to land use and land development as may be found in a zoning code. For example, when homeowners seek to build an extension, they often need to obtain a variance from the zoning codes in terms of setback requirements from their neighbor's property line. For those so inclined, public hearings on variances can be viewed on the Town Board's website which contains recordings of prior Zoning Board hearings.

However, in all likelihood (for which there is no certainty as the actual contract of sale between the developer and Azko Nobel is not public), the most significant condition is the cost of the environmental cleanup of the property which is considered a "brownfield." The Environmental Protection Agency defines a brownfield as "abandoned, idled or under-used industrial and commercial sites where expansion or redevelopment is complicated by real or perceived environmental contamination that can add cost, time or uncertainly to a redevelopment project."

Along these lines, the developer has entered into and been accepted as a volunteer in New York State's brownfields cleanup program. This program provides a number of different tax subsidies to developers who "volunteer" to clean up contaminated land so that it can be developed into more productive uses.  In the case of The Jefferson, this may potentially result in a 40% recovery of its remediation and construction costs.  Whether it is a proper use of tax dollars to subsidize luxury housing is a political issue that has been covered previously on this blog. In fact, the abuse of the brownfields tax subsidies in connection with luxury developments in New York City resulted in major changes to the law in 2015. In Westchester, one of the most cited abuses was the issuance of brownfield tax credits to build the Ritz-Carlton Hotel in White Plains where its BLT steakhouse boasts a 12-ounce American Wagyu ribeye for $94.

 However, the recent legislative changes were mostly aimed at development in New York City and  did not materially impact future developments in Westchester County. It does appear JPI/TDI started its process with the Department of Environmental Conservation just before the brownfields legislation changed. There was also a risk the law itself would not be renewed.

As reported on the website of the Edgemont Community Council, the Town of Greenburgh has entered into a contract of sale of the former Frank's Nursery site on Dobbs Ferry Road.  According to the ECC:

Ever since the Town acquired the environmentally contaminated property in early 2011 in a tax foreclosure sale, Town Supervisor Paul Feiner has been assuring taxpayers that the sale of the property would net millions of dollars for the Town.

Now, nearly five years later, after having a professional real estate auctioneer try to market the property for nearly two years, town officials will ink a deal this week to sell the property for $3,520,000, but with a catch: the Town is on the hook for up to $2 million of the purchase price to get the site cleaned up.

If it costs more than $2 million to clean up the site, either side can walk away from the deal.  While the state (sic) has applied for state funding to help pay for the cleanup, there is no guarantee that any funding will be provided.

As revealed at the February 27, 2015  Town Board work session (which can be found on the Town's poorly designed and non-user friendly website under archived "live" Town Board meetings) there is no current NYS program for towns such as Greenburgh to obtain funding to help pay for the cleanup.

As is true with the Town's contract to sell Frank's to an assisted living facility, the contract between JPI/TDI and Akzo Nobel likely has a similar provision that if the cleanup costs are too high, the developer retains the option to walk away and not purchase the property. That is generally how development contracts work. It is interesting to note that in White Plains, where a contentious fight is ongoing regarding the development of the failed Ridgeway Golf Club, the property was apparently bought by the intended user, The French American School of New York (FASNY)  without being subject to FASNY first obtaining land use approval as to whether it can be converted to a school. Obviously this a risk but many factors go into making business decisions.

According to the Department of Environmental Conservation (DEC), the developer of The Jefferson is scheduled to begin what is known in DEC lingo as "Site Characterization and Remedial Investigation" to determine the scope of the contamination and its plans for remediation. These test results and plans must then be submitted to the DEC's offices in both Region 3 (which covers Westchester) and Albany for approval. However, as the site is over 10 acres in size and bounded on both sides by the Saw Mill River, the investigation could take many months.

As the proposed land use approval process continues at the second scoping session on February 10, 2016 before the Town Board  (the meeting is still scheduled to be held at Greenburgh Town Hall), we should keep in mind this quote from the late David Bowie:


"I don't know where I'm going from here, but I promise it won't be boring."