Tammany Tom and Team's Legal FASNY FALLACY

9/26/17

Almost seven years have passed, and we are still disputing the FASNY project. What is taking so long to reach a decision? Can the answer be that it is too flawed to exist in a residential neighborhood?

Why wasn’t this realized early on by the leaders of the City of White Plains? I searched for answers by meeting Mayor Tom Roach in his office and Councilman John Kirkpatrick (twice) in my home years ago. Both stated with conviction, that it was simply a matter of obeying the law.

They used the Cornell case as an example of why it was necessary to allow the FASNY project to proceed. What they failed to accept in the Cornell case, is that a school generating overwhelming traffic, with no practical mitigation measures available to avoid destroying the character of a neighborhood, are requirements that FASNY cannot achieve. Of concern, is the interpretation by the Mayor and three members of the Common Council that FASNY is ENTITLED to a more favorable result in receiving approval than other types of land use. Their failure to give credence to the New York State Court of Appeals statement in the Cornell case that “special treatment and favored status of private educational facilities has changed since the increase in vehicular traffic and a host of new problems, including unexpected inconveniences to their their neighbors. It would bring people from other communities into the neighborhood to disrupt its peace and quiet.”

Those members of the City government, noted above, chose to ignore these assertions and instead went out of their way to assist FASNY in mitigating the multitude of issues that as yet have not been satisfactorily accomplished. The degree to which they have bent over backwards in their support of FASNY is illustrated by Councilwoman Beth Smayda’s protestation: “The law says we must defend the applicants, we can’t defy federal and state law which will inevitably result in litigation. The applicant has fulfilled their obligation. I have examined documents that are extremely complete and I believe that FASNY has met and even exceeded the conditions that were outlined in the site plan.” Councilman John Kirkpatrick from the start was inflexible in the belief that a challenge to the FASNY project was not an option. “We take an oath to follow the law. We don’t have a lot of choice.” Have either of these Council people read the New York State Court of Appeals statement in the Cornell Case?

A letter to the Mayor from a lawyer, Dennis E.A. Lynch, was mailed on August 29, 2013, with copies to members of the Common Council, Ann McPherson, City Clerk and John Callahan, Corporation Council, outlining in detail the matter in question i.e. was the City of White Plains obliged to proceed with approving FASNY’s Site Plan and Special Use Permit? The citizens of White Plains, have been rendered powerless by the egregious non-transparency of our government and their willingness to accept no matter how offensive, overpowering or unsafe to a residential neighborhood the use might be. Such an interpretation, however, is mandated neither by case law of NY State or common sense.”

Following my discussions with the Mayor and Councilman Kirkpatrick I realized that hiding behind the paper shield of the law they were prepared to march forward to make the case for FASNY. There was never a challenge and instead the Mayor and three City council members went out of their way to assist FASNY in the mitigation process, which to date, despite their denials, have not been achieved. It was exasperating to witness the allegiance to FASNY by the elected officials of White Plains, to the detriment of the citizens they were elected to serve. What a betrayal!

On the closure of Hathaway Lane, Mayor Roach announces that “One of the concerns I have is access on this site is not just a luxury or a nice thing to do but a mitigating factor that really is essential!” My question is: to whom is this really essential- FASNY or the citizens of White Plains?

Councilwoman Nadine Hunt Robinson realized that the closure of Hathaway would create a problem while at the same time attempting to fix another. “Closure of Hathaway results in a negative impact.” The presumption by FASNY and their City government acolytes that closure of a city street would be of benefit to the city is preposterous. The astute statement “Sometimes you try to fit a round peg into a square hole…” stated by Ms. Robinson not only covers the street closure but the entire FASNY project.

There are numerous examples over the past seven years that suggest there is a FASNY bias by the Mayor and three members of the Common Council. Beth Smayda went out of her way to demonstrate that FASNY property, which had already been declared environmentally sensitive by two independent experts, was not environmentally sensitive. She went out on her own, inspected the area on hands and knees and concluded that these experts were wrong and the area of concern, in her opinion, was a ditch and not a stream. Of interest, one of the two experts was appointed by the Mayor, who never reported the findings for several months, resulting in an independent analysis by another expert selected by The Gedney Association, costing a substantial amount of money. This unnecessary expenditure could have been avoided had we not been living under a nontransparent City government. John Kirkpatrick had his own theory about this environmentally sensitive area, and concocted a explanation that was too bizarre to explain.

All of these actions clearly illustrate how four of the members of the City government bent over backwards to assist FASNY in achieving their goal and turned the same back on the residents they swore an oath to protect and support!

What has influenced this group to be so in thrall of FASNY? I do not have an answer. Only the group of four knows and I can only offer an unflattering conjecture.

Sanford S. Zevon MD