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."

Can the Village of Ardsley Secede from the Town of Greenbrugh?

Various Ardsley group postings on Facebook (created by Mark Zuckerberg,

a Dobbs Ferry resident whose family lived in the Ardsley School District)

are asking questions such as:

Can Ardsley leave the Town of Greenburgh?

The answer is essentially no.

New York State's government structures have developed over the past four centuries. Everyone knows in 2016 they are antiquated. But modernizing them is exceedingly hard. Under New York State law, every village must be located within a Town.

Village residents actually live in three local municipalities - Village, Town and County. State residents who don't live in towns or villages live in cities. (We also have Indian reservations in New York State). There are a few coterminous town/villages such as Scarsdale, Harrison and Mount Kisco. Scarsdale was originally a town but in order to fend off an attempt by the City of White Plains to annex a portion of it, Scarsdale became a village. Village borders cannot be changed unless the residents who live there give their consent. But, as is true in the case of Scarsdale, its town/village borders do not match up with its school district boundaries. To further illustrate the Byzantine nature of local government in New York State, nine villages are located in more than one county, and sixty five are in more than one town.

In 1998, a tree fell in a special park district in the Edgemont section of Greenburgh near Central Avenue and killed a man and paralyzed his wife. Because the Town of Greenburgh was woefully under insured, the multimillion dollar settlement of the lawsuit required taxpayers to pay the damages.

But which taxpayers?

When the Town sought to charge the villages (Ardsley, Hastings, Irvington, Tarrytown, Elmsford and Dobbs Ferry) for costs of the settlement which exceeded the available insurance, the Villages began to speak openly of secession. As reported by The New York Times:

"The immediate trigger was a dispute over whether the villages -- Ardsley, Dobbs Ferry, Elmsford, Hastings-on-Hudson, Irvington and Tarrytown -- should help bankroll a $9 million settlement with a Yonkers woman paralyzed and widowed when a tree fell onto her car on Central Park Avenue in June 1998.

The tree fell to the road from a park in the unincorporated portion of Greenburgh. The villages, which pay for parks of their own, have argued that they should not have to contribute any cash to the settlement."

However the grievances that gave rise to that secession proposal were forgotten, the politicians favoring it left office or on further investigation it was discovered that creating a new town was too cumbersome and not worth doing. Hopefully the Town learned its lesson about the need for adequate insurance (for example at the time, the Village of Ardsley, 1/10th the population size of unincorporated Greenburgh, had 11 million dollars in coverage while the Town had about 3 million - not much more than many homeowners carry!)

How did this happen?

The key difference between town government and village government is that villages are managed day to day by professional Village Managers who are the equivalent of Chief Executive Officers. They do not spend their time issuing daily press releases or raising money. Instead, they focus on the day to day nuts and bolts of governing a municipality. That is why, for example, Ardsley was able to secure federal grants to create a new and transformational concrete sidewalk along Heatherdell Road - through the sustained efforts of its then Village Manager George Calvi with the support and leadership of the Ardsley Board of Trustees (including Mayors Leon and Porcino who both started as trustees) over a nearly ten year period.

Village Boards also tend to be populated by individuals who have a greater variety of experience in business, engineering and law which leads to better decision making. Finally, Village Board members are not career politicians. They have usually served on a number of local boards (zoning, planning, school, architectural review, etc.) as an apprenticeship before they become Trustees. There is no "Town Manager" in Greenburgh.

Now in 2016, the feeling of village solidarity from the mid-1990s that arose from the "tree case” is somewhat gone - Ardsley sued Dobbs Ferry over Rivertowns Square (and rightfully so). There are calls for Ardsleyans to boycott Rivertowns Square. Hastings approved The Lofts on Saw Mill River Road in a seemingly middle of the night manner that has upset many Ardsley and Greenburgh residents.

The last village in Westchester to actually secede from a town appears to have been Rye in 1942. Rye actually became a city (which requires the permission of the State legislature in Albany) because its residents no longer wanted to pay the welfare costs for neighboring areas in the Town of Rye like Port Chester. Even given our dysfunctional New York State legislature, that reason would not past muster today. However, do not look for any new municipalities to be formed anytime soon as under Governor Andrew Cuomo, legislation was passed to push for municipal consolidation which disfavors the creation of more layers of government. This was, in part, behind the effort by Town Supervisor Feiner to consolidate the three professional fire districts in Greenburgh and to push for the merger of the Dobbs Ferry police department with Greenburgh's police department. Neither succeeded largely over a fear of loss of local control.

Westchester is tribal.

While it may seem the answer to stopping over-development in the Ardsley School District is extending Ardsley’s village borders to be coterminous with its school district to better control land use, this is, for many reasons, extremely difficult as the school district borders extend over parts of the villages of both Dobbs Ferry and Hastings and large sections of unincorporated Greenbrugh (such as the Chauncey section where The Jefferson is intended to be built). Just ask your neighbors in these villages or areas who are in the school district but outside Ardsley’s village borders at your next birthday party if they are willing to become part of a greater Ardsley village and see the reaction.

As wise person observed, to understand something, try changing it.