Commissioners of the Greenville Fire District pushed back against claims made in a complaint filed by Formation-Shelbourne Senior Living Services in Westchester Supreme Court in March, asserting that the developer’s newest legal action was a strategic litigation against public participation (SLAPP) lawsuit and failed to state a cause of action.
SLAPP suits, when plaintiffs file legal actions to target or silence critics rather than to absolve a true legal claim, were broadened in scope by the state legislature last November, allowing victims of such a suit to recover court costs and attorney’s fees.
Born out of a notice of claim filed in August 2020, the complaint from Formation-Shelbourne, which has been engaged in a years-long legal battle with local civic associations and the fire district over plans to construct a senior living facility at the former Sprainbrook Nursery, alleges that fire district commissioners took measures to disrupt, delay, oppose, and challenge the proposed facility at 448 Underhill Road with no legal basis.
Plagued by multiple legal battles since 2017, the project — approved in February 2018 by the Town of Greenburgh after the zoning board of appeals granted a variance to the developer regarding the distance of the site to a state or county right of way — was opposed by the fire district, which argued that the facility would generate a high rate of emergency medical calls and force fire district personnel to travel along a difficult access route.
The decision led to separate Article 78 lawsuits from both the Council of Greenburgh Civic Associations (CGCA) and the board of commissioners of the Greenville Fire District. Westchester Supreme Court Judge Susan Cacace dismissed both lawsuits in February 2019.
The Greenville Fire District and the CGCA filed notices of appeal in March 2019. In September 2019, the Greenville Fire District with the CGCA filed joint motions to consolidate their appeals, but the court denied their motion in January 2020. The cases will be heard on the same date and are currently awaiting a schedule for oral arguments.
In its newest complaint against the fire district, Formation-Shelbourne argued that the district acted as “agents and lobbyists” for people who were opposed to the development and “unjustly delayed, obstructed, and interfered” with Formation-Shelbourne’s business relations. Claiming tortious interference (a common law tort allowing a claim for damages against a defendant who wrongfully interferes with the plaintiff's contractual or business relationship), Formation-Shelbourne wrote that the district’s commissioners were aware of their business relationships and interfered by “vociferously and repeatedly” objecting to the development, initiating a “baseless and frivolous” lawsuit, appealing the results of the lawsuit, acting beyond the scope of their duly elected and appointed offices, and “conspiring” with other residents to oppose the project.
Formation-Shelbourne demanded judgment of no less than $1 million from the district.
In June, the district filed a motion to dismiss, contending that Formation-Shelbourne’s complaint failed to establish tortious interference and included “bare conclusory allegations” without referencing any specific action by the commissioners in their individual capacities.
In an affidavit submitted by Walter Groden, the chairman of the district’s board of commissioners, the district had concerns about the safety and fiscal impacts of the facility. The district anticipates an increase in call volume that would require fire personnel to traverse the serpentine roadway more than usual.
He added that the district had no objection to the development of assisted living facilities in the district and that had adequate measures been put in place to address the district’s concerns, they wouldn’t have an objection to Formation-Shelbourne proceeding with construction.
“[Greenville Fire District’s] participation in the land use application review process and its subsequent pursuit of litigation is not in furtherance of a ‘conspiracy,’ nor is it intended to intentionally inflict harm upon [the] plaintiff,” Groden wrote. “I am not engaged in a ‘conspiracy’ with other members of the community to prevent the development of [the] plaintiff’s proposed assisted living facility. Nor am I acting as an agent or lobbyist.”
Fire district commissioner Jon Faust told the Enterprise that Formation-Shelbourne’s allegation that their litigation with the developer was frivolous was itself frivolous and that the district’s concerns raised in its litigation were appropriate.
“This isn’t particularly complicated or nuanced. If you put a large, new residential facility at the farthest corner of the district, accessible only by a circuitous road, there are obvious safety concerns,” Faust said. “In fact, that Is exactly why the zoning rules… don’t allow a facility there. Shelbourne [needed] to get a variance from the rules, because the rules — which are designed to promote public safety — … don’t allow that type of facility in that location.”
As noted in litigation at the time, the Town’s zoning laws only allowed assisted living facilities to be within 200 feet of, and to have access to, a state road or county right of way. The zoning code also required the access to be direct and not circuitous. The Formation-Shelbourne facility received a variance to be 6,025 feet from a state or county right of way.
In October 2020, the town board amended the zoning code to require assisted living facilities to be on a state roadway, other than parkways and interstate highways, with at least 100 feet of frontage.
A new provision was also added, which set a minimum distance of 4,000 linear feet between each assisted living facility and required information on emergency municipal EMS transport-only policies be designed to not place an undue burden on emergency providers.
Although the zoning code was amended, the section requiring assisted living facilities to be on a state roadway doesn’t apply to any facility lawfully existing or approved prior to the amended law.
“It’s our view, and it’s always been our view, that the fire district has acted outside the scope of what it’s supposed to,” said Lino Sciarretta, the lawyer representing Formation-Shelbourne. “The fire district is not acting like the fire district here and… that’s the basis of our action.”
In its complaint, Formation-Shelbourne alleged that the fire district’s commissioners knew that the facility had entered into an agreement with Alfred Krautter, who owns the nursery where the facility would be built, to purchase the premises. It also alleged that the fire commissioners “directly interfered” by “unlawfully delaying and ultimately halting further development.”
In its memorandum of law in support of its motion to dismiss, the district classified Formation-Shelbourne’s lawsuit as “a purely vindicative strike” at the commissioners. Faust told the Enterprise that the district knew that some sort of agreement existed between Krautter and Formation-Shelbourne, but that he — and to the best of his knowledge the other district commissioners — didn’t know the particulars of the agreement.
“Shelbourne could have… started construction at any time,” Faust said. “Nothing we’ve done has blocked them from proceeding.”
In October 2019, the Edgemont Community Council voted in favor of allowing Bob Bernstein, the lawyer representing the Council of Greenburgh Civic Associations and the ECC’s now former president, to file a preliminary injunction to stop Formation-Shelbourne from moving ahead with construction after a press release was circulated asserting that the facility was going to begin site work the following day. The court denied the injunction in January 2020.
Construction has still not begun. Asked what was barring groundbreaking at the site, Sciarretta said he was not able to comment. The complaint from Formation-Shelbourne states that the start of construction and progress on the project was delayed due to the actions of the fire district.
“We don’t have any objection to this particular developer. We don’t have an objection to the notion of an assisted living facility in the district,” Faust said. “What we do have a concern with are the specific problems presented by this particular development at this particular location.”