RCCY
River Communities Coalition of Yonkers
ALERT
353 Unit Proposal for 1105 Warburton Ave on
Planning Board Agenda
Date: Wednesday, November 18, 2009
Time: 5:30 p.m.
Location: Yonkers City Hall
40 South Broadway - 4th floor
Yonkers, NY 10701
GDC is once again slated to come before the Planning Board with it's proposal for a 353 unit hi-rise development at 1105-1135 Warburton Ave.
RCCY continues to oppose this scheme - even more so now that the data in the initial Environmental Impact Statement (EIS) is over 7 years old.
What can you do?
Attend Wednesdays meeting and contact the Planning Board to demand a new EIS that reflects current area conditions (as per email alert below from 10/25/09)
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Good Evening,
The 353 unit Ginsburg Riverclub project (1105-1135 Warburton Ave) is likely to come before the Yonkers City Planning Board in November.
Below is a letter from Kathryn Spann (longtime RCCY member) to the Yonkers Planning Board citing the need for a supplemental environmental impact statement (SEIS) before any more approvals are issued.
It is critical that you submit your written comments to the Planning Board on this item now.
Comments to the Yonkers Planning Board can be submitted via email c/o Colleen Roche colleen.roche@yonkersny.gov with cc's to Sharon Ebert, Deputy Commissioner for Planning & Development sharon.ebert@yonkersny.gov and Lee Ellman, Planning Director lee.ellman@yonkersNY.gov
Thank you,
Mike Hertz
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October 23, 2009
Sharon Ebert sharon.ebert@yonkersny.gov
Deputy Commissioner for Planning & Development
Roman Kozicky c/o colleen.roche@yonkersny.gov
Chairman, Yonkers Planning Board
Lee Ellman lee.ellman@yonkersNY.gov
Planning Director
City of Yonkers
87 Nepperhan Avenue
Yonkers, New York 10701
Re: 1105-1135 Warburton Avenue, application for site plan approval
Dear Commissioner Ebert, Chairman Kozicky, Members of the Planning Board, and Mr. Ellman:
I am the owner of 1178 Warburton Avenue, and a founding member of the River Community Coalition of Yonkers. We have followed the submissions by Ginsburg Development Corporation since 1999, when they first sought site plan approval. I write to detail the factual and legal reasons why a supplemental environmental impact statement (“SEIS”) is necessary now.
In connection with that original application, the Planning Board required the preparation of an environmental impact statement under both the federal National Environmental Policy Act (“NEPA”) and SEQRA. This was adopted as a final EIS in 2002. Since that time, the neighborhood has experienced a series of environmental catastrophes related to construction failures on steep slope sites, or related to stormwater runoff on such slopes. These include the north and south side collapses at the 1077 Warburton Avenue site, which impaired neighboring properties, and required significant remediation of the adjacent street and sidewalk, as well as the slope failure and massive sewer line breach at the River Club site itself, with the resulting discharge of more than 7 million gallons of sewage into the adjacent Hudson River. Prompted by these events, the City Council this summer approved a petition to rezone approximately 25 acres in the immediate vicinity of the River Club site. Indeed, the River Club site was originally included within the rezoning proposal, and was excluded solely because of its (now expired) site plan approval. Further, City Council President Chuck Lesnick and City Council member Joan Gronowski have now submitted a draft steep slope ordinance, which should properly govern the new site plan application for the River Club site. These issues of slope were passed over in the original EIS, which simply noted that “Site topography is generally steep (greater than 15%) adjacent to Warburton Avenue and becomes flat at the site. Wetlands/flood plain area is in the western half of the site (Fig. 4.1-3). Approximately 50% of the site has slopes that exceed 15% (Fig. 4.1-4).” Page 4.1-2 (Section 4.0 Existing Conditions, Potential Impacts and Proposed Mitigation Measures; subsection 4.1 Soils & Topography; paragraph 4.1.1 Existing Conditions). The specific slope area and locations (for example, what portion of the property contains slope greater than 30%? Greater than 25%?). Consequences of that slope are not addressed at all, nor are any possible mitigation measures. This topic was not an area of focus for the developer, the lead agency, or frankly the community at that time. Subsequent events have, however, revealed the instability of these slopes and the importance of ensuring a full analysis of these environmental factors and potential impacts.
In addition to these events, the traffic study is now grossly outdated, in light of the extensive construction which has occurred or been approved since completion of the original EIS. Specifically, these projects include:
The office and retail building at 1034 North Broadway
St. John’s Riverside Hospital’s opening of the Michael Malotz Nursing Home, entrance on Odell Ave.
The Remi residential tower under construction at Warburton & Odell Avenues
Nine units approved for construction at 1104 Warburton Avenue
The increased traffic due to the rising intensity of commercial activity in the Executive Blvd. corridor as evidenced by the conversion of the Schott warehouse on Enterprise Blvd. to office space now occupied by Montefiore Medical Center.
A children’s hospital approved for the Southwest Executive Park.
Multiple commercial and retail proposals for the former Boyce Thompson property at North Broadway & Executive Blvd.
Two newly opened hotels off of Executive Blvd.
A credit union off of Executive Blvd.
Verizon switching center off of Executive Blvd.
A newly opened round-the-clock animal hospital off of Executive Blvd.
Increased commercial activity at the Stew Leonard Drive retail district which has lead to abysmal conditions along Jackson Avenue.
The mixed use village under construction at Ridge Hill which will severely impact Tuckahoe Road as well as Jackson Avenue.
Collins Corporation’s waterfront apartment rental complex.
Approval of the SFC project.
Hope V proposal to remove Mulford Gardens and rebuild the Ashburton Ave. corridor.
Approval of the mixed use proposal for the Alexander St. urban renewal area.
Various actual and proposed housing in Getty Square (i.e. Trolley Barn,
Lofts at 25 North Broadway, 45 North Broadway, Teutonia Hall, 66 Main Street, etc.)
Proposals for reuse of the Glenwood power plant.
These substantial changes since the last EIS warrant, at a minimum, a supplemental EIS to address the steep slope issues and the traffic issues.
Federal and state law provide similar standards governing the question of when a SEIS is required.
“The primary function of an environmental impact statement under NEPA is to insure a fully informed and well-considered decision[.]” Sierra Club v. U.S. Army Corps of Engineers, 702 F.2d 1011, 1029 (2d Cir. 1983). To accomplish this, “the EIS must set forth sufficient information for the general public to make an informed evaluation and for the decisionmaker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action.” Id. The standard for when an SEIS is required is set out in the federal regulations at 40 C.F.R. 1502.9(c)(1):
Agencies (1) shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
“An agency’s obligations under NEPA do not end with the preparation of an EIS. The agency may be required to prepare an SEIS if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” specifically when “the new information shows [an] effect [on] the quality of the human environment in a significant manner or to a significant extent not already considered.” Natural Resources Defense Council v. Raritan Baykeeper, Inc., 399 F. Supp. 2d 386, 397 (SDNY 2005) (holding that Army Corps erred in failing to prepare an SEIS prior to dredging, in light of new designation of dredging site as part of Superfund study site). “Close calls should be resolved in favor of preparing an SEIS.” Id.
SEQRA has a similar standard. The lead agency may require an SEIS where “specific significant adverse environmental impacts [were] not addressed or inadequately addressed in the EIS [and] arise from (a) changes in the project; (b) newly discovered information; or (c) a change in circumstances related to the project.” See 6 NYCRR 617.9(a)(7)(k). A decision to require an SEIS due to newly discovered information must be based on (a) the importance and relevance of the information and (b) the present state of the information in the EIS. 6 NYCRR 617.9(a)(7)(ii). “Basically, an SEIS is required where there are environmentally significant changes after the FEIS.” Riverkeeper v. Planning Bd. Of Town of Southeast, 32 A.D.3d 431 (2d Dept. 2006) (requiring preparation of SEIS in light of newly approved subdivisions near the subject property, and changes in governing regulations and regulatory environment since completion of FEIS). See Matter of Doremus v. Town of Oyster Bay, 274 A.D.2d 390 (2d Dept. 2000) (finding that town failed to meet its SEQRA obligation when it approved application based on 10-year-old FEIS, in light of passage of time and failure of original EIS to consider possible mitigation alternatives).
In reviewing a lead agency’s determination under SEQRA, the New York courts have sought to ensure that the lead agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination – whether or not that determination ultimately requires the preparation of an SEIS. See Matter of County of Orange v. Village of Kiryas Joel, 44 A.D.3d 765 (2d Dept. 2007) (finding that amendment of FEIS, rather than preparation of SEIS, was proper where the problem was a deficiency in the original FEIS, and not a change in the project, newly discovered information, or a change in circumstances related to the project).
We respectfully submit that GDC’s new application for site plan approval must, under both NEPA and SEQRA, trigger the preparation of a supplemental EIS to address the significant impacts presented by the construction of 353 units on the 4.5 acre steeply sloped site, in light of the events which have occurred since approval of the FEIS and in light of the new zoning and regulatory environment. Likewise, the extensive buildout along the traffic corridors which serve the River Club site must trigger an SEIS to fully reevaluate the current traffic impacts and environment.
As the Board considers GDC’s new application, we also ask it to require the posting of a performance bond. Section 43-109 of the Yonkers Code permits the Board to condition site plan approval on the applicant’s posting of a performance bond, which can specify the time within which the improvements must be completed, and can require that the improvements be of satisfactory “soundness and integrity”. Such a condition is particularly appropriate whenever steep slopes are involved, or other technically complex developments are at issue. Had a performance bond been required for the Remi and 1104 Warburton sites, they could have been restored to something other than erosion-prone excavation sites when the projects failed. No developer is immune from financial collapse, particularly in this economic climate. Given the steep slopes in our area, our neighborhood remains uniquely vulnerable to the consequences of abandoned development projects.
Thank you for your consideration of these issues.
Sincerely,
Kathryn C. Spann
Kathryn6668@yahoo.com
