The City of White Plains Almost Certainly Is Legally Required To Approve FASNY's Modified Site Plan

I write in response to comments entitled “Tammany Tom and Team’s Legal FASNY Fallacy”, posted on Patch.com September 27, 2017, by Sanford S. Zevon, M.D. Dr. Zevon does not claim to be an attorney or to have any other basis for legal expertise. Nonetheless, Dr. Zevon accuses White Plains Mayor Tom Roach and certain members of the City’s Common Council of “hiding behind the paper shield of the law,”which Dr. Zevon contends does not require approval of FASNY’s modified site plan.

I am an attorney who has practiced law in New York for 40 years. I have no affiliation of any kind with FASNY and I am not involved in FASNY’s lawsuit against the City of White Plains. However, as a White Plains taxpayer who is concerned about the City’s fiscal health, as well as the City’s risk of liability for a huge damage award should FASNY’s application be again denied, I have made it my business to study the law and consider the publically available facts. Based on that, it is evident to me that the City is legally obligated to approve FASNY’s modified plan, and that approval is the right thing to do.

Under New York Law, White Plains Is Required To Accommodate FASNY’s Reasonable Educational Use of Its Land

Because the law assumes (quite reasonably) that educational land uses benefit the community, municipalities like White Plains are required by New York law to accommodate reasonable educational uses of land. The law also requires agencies like the White Plains Common Council to use “greater flexibility” when reviewing educational land use proposals, and that “every effort to accommodate” an educational land use “must be made.” This is the law, not Dr. Zevon’s distorted version.

Importantly, FASNY’s Ridgeway property is zoned for public or private school use, a crucial fact that Dr. Zevon has ignored. By zoning the property to allow for a school, the City has expressly acknowledged that school related impact, like traffic volume on Ridgeway and Hathaway, was anticipated and considered compatible with the neighborhood. In fact, a public school use is included as a matter of right in the zoning for the Ridgeway property.

And most importantly, in an effort to address concerns raised by some members of the community and members of the Common Council, FASNY has made accommodation after accommodation over the almost seven years that the FASNY saga has dragged on. Most recently, these include as part of a Court Ordered Stipulation:

• Reducing, once again, the number of students -- this time by 33% from 950 to 640,

The City’s experts have reviewed and analyzed every aspect of the School’s traffic plans, and found that they will not adversely impact the safety, health or character of the area, which already houses 8 local schools and other institutional uses. Dr. Zevon fails to mention that the City’s Planning Board, Design Review Board and Transportation Board have all unanimously recommended a vote in favor of FASNY’s modified plan.

Under these circumstances, it seems virtually inconceivable that a court would find that FASNY’s modified plan represents anything but a reasonable use of its land that the City must accommodate. In fact, even before FASNY substantially scaled back its plan to the one that is on the table now, the Judge in FASNY’s lawsuit against the City recognized the many accommodations that FASNY had made, and characterized the City’s actions with respect to FASNY in scathing terms which are as harsh as any judicial language that I can recall in all my years of practice (e.g., the City has “held [FASNY’s application] hostage”; is “waging a war of attrition in an effort to dissuade FASNY from pursuing what appears to be a legal use of its land”; “has plainly and purposefully frustrated and thwarted the normal application review process”; has acted with “contemptuous disregard of this Court’s order”; and taken actions that are “so unreasonable, duplicative, [and] unjust as to make [its] conduct farcical”).

White Plains Faces A Significant Risk of A Multi-Million Damage Award

Although the circumstances and applicable law are not identical, the experiences of the Town of Greenburgh and the Village of Mamaroneck are highly relevant. Both municipalities waged lengthy, ultimately losing battles against religious and educational land uses, resulting in reported settlements of $6.5 million (Greenburgh) and $4.75 million (Mamaroneck) (the vast majority of which is reported not covered by insurance). While I recognize that these cases in large part involved the Federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the common law and special legal protections afforded educational land uses in New York State are as strong, if not more vigorous, than federal RLUIPA law.

Importantly, the Judge’s prior decision in FASNY’s case against the City (quoted above) raises very serious concerns as to how the Court would rule if the City rejects FASNY’s modified plan. Regardless of whether one agrees with the Judge’s conclusions, these are precisely the type of characterizations employed by courts to support an award of damages, both actual and punitive in nature.

In sum, Dr. Zevon’s suggestion that approval of FASNY’s modified plan will “betray” the citizens of White Plains ignores the law and the facts. That approval, which is almost certainly legally required, will eliminate the risk of a huge damage award here, and ensure that those in the community and on the Council who have raised concerns will have those concerns met by FASNY’s modified plan that is on the table now.

Nina Shreve