By CHRIS EBERHART
There was a courtroom atmosphere at the May 13 Eastchester Zoning Board of Appeals meeting, with attorneys from each side of the Summerfield Street senior housing apartment proposal jabbing the other with pointed legal arguments.
Developer DELV Development’s proposal, which dates back to 2012, calls for a five-story, 92-unit apartment building for seniors 55 years or older to be built at 151 Summerfield St., the current location of Ted Hermann’s Auto Body, and an accompanying underground garage.
The proposal would sit in a one-to-three story, mixed residential and commercial neighborhood and would require 11 zoning variances.
The project—because of its size, number and significance of variances and potential environmental impacts—drew the attention of North Eastchester residents who would neighbor the proposed building.
Since the project was first introduced in 2012, droves of area residents have filled Town Hall during Planning Board and Zoning Board of Appeals meetings in opposition.
The Planning Board’s public hearing was closed in February after an 18-month standoff.
Despite passionate opposition, the board issued a negative declaration, meaning the project will not have a significant adverse impact on the environment, on April 24 and sent the proposal to the Zoning Board of Appeals.
May 13 marked the first time the Zoning Board of Appeals discussed the Summerfield Gardens proposal since 2012, when the developer’s request for 11 variances was first heard.
Attorneys representing DELV Developer and the North Eastchester residents sparred in a legal battle over the five factors a zoning board must take into account when determining area variances.
According to state law, in order to receive an area variance, an applicant must show the “benefit of the project outweighs any burden to health, safety and welfare that may be suffered by the community.”
David Steinmetz, an attorney from Zarin and Steinmetz, a White Plains-based law firm representing the applicant, believes the proposed development does just that.
“This project can be Eastchester’s new beginning or [the town] can remain mired in the past…DELV Developer is presenting an incredible, unique opportunity for the property, for the community and for the larger town to fill a demand for age-restricted, niche rental housing,” Steinmetz said. “I fully understand there are many people here tonight who live in the area that don’t agree with me, and that’s not my issue. My issue is it’s a matter of law. The benefit to the applicant outweighs the adverse impacts of the community.”
When determining area variances, a zoning board must take into account five things: whether an undesirable change will be produced to the character of the neighborhood; if the benefit can be achieved without variances; whether variances are substantial; whether variances will have an adverse effect on the neighborhood; and whether an alleged difficulty is self-created.
Steinmetz used the Planning Board’s negative declaration as the basis in justifying his argument for the variances.
“The Planning Board has already reached a critical threshold determination [with the negative declaration],” Steinmetz told the Review. “We’re confident that what has been presented to the Zoning Board and the questions that are going to be answered will continue to demonstrate that we’re consistent with the character of the community, not have an adverse impact on the environment and therefore the variances can be granted.”
But Les Maron, of the White Plains-based law firm Maron and Mazzanti representing North Eastchester residents, downplayed the negative declaration.
“The negative declaration is saying we don’t think the environmental changes are so significant that they have to do [a full environmental impact statement],” Maron said. “A positive declaration meant the developer would’ve had to do a full environmental impact statement, and we wouldn’t even be here today. They’d still be working on it a few years from now.”
Even with the negative declaration, Maron explained the Zoning Board of Appeals “has the obligation to independently look at the environmental effects.”
“While you can certainly be guided by [the negative declaration], you don’t have to have the same findings,” he said.
Steinmetz said the Planning Board wouldn’t have passed the negative declaration if it felt the variances were substantial. He argued the four variances for yard setbacks, which are non-existent in the proposal but are required by the zoning code to be 22 feet in the two side yards and front yard and 30 feet in the back yard, are not as great as they seem.
He said the variances include the underground parking garage, which is a technicality required by Eastchester’s zoning code since it’s the widest part of the project. But the underground garage is wider than the proposed building. So, Steinmetz argued, because the garage is underground and can’t be seen, the variances shouldn’t apply.
Instead, he urged the board to consider the setbacks for the above-ground building. If the board disregarded the garage, there would only be three setback variances—not four—for 10 feet for the rear yard setback and 12 and 22 feet for the two side-yard setbacks. This would drop the number of variances from 11 to 10.
Maron agreed. But, he said, even if the setback variances for the underground garage are not included, the cumulative effect of the remaining 10 variances is “substantial.
“The board can and should look at the cumulative effect of these variances,” Maron said. “The courts have recognized the cumulative effect of requesting for multiple variances is more likely to be ruled substantial. In other words, if you’re asking for a lot, it’s going to be an issue.”
And Maron argued DELV Development knew it was going to need these variances and bought the property anyway, meaning this was a self-created hardship.
“The applicant went into this with his eyes open and clearly knew what was there,” Maron said.
But as Maron and Steinmetz both said, state law says self-created difficulty “does not, in and of itself, act as a bar to the granting of an area variance.”
The public hearing regarding the Summerfield Gardens proposal will resume on June 10.