Judge Rejects White Plains Council Motion to Dismiss FASNY Case

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New York State Supreme Court Judge Joan Lefkowitz has rejected the White Plains Common Council’s motion to dismiss a lawsuit put forward by the French American School of New York (FASNY) and has given the council 20 days from the ruling on April 19 to respond to the FASNY challenge of its rejection to build a regional K-12 school on the site of the former Ridgeway Country Club in the Gedney neighborhood of White Plains.

The judge’s ruling examined the history of the FASNY application and in several instances in response to the council’s objection that a court ruling could determine the fate of the proposed application, indicated instances where a judgment might be made.

In particular, the council’s determination that the vote not to close a portion of Hathaway Lane (an essential element of the proposed FASNY Site Plan that rendered the site plan application moot) was a legislative decision and not subject to judicial review was questioned by Judge Lefkowitz and sections of the council’s rationale for immunity from judicial review were rejected, therefore giving the Court jurisdiction over some of the council’s action.

Judge Lefkowitz determined that the 2014 Special Permit Application was not moot and the Court has the power to compel the council to vote on it.

“As this Court has already held, while the 2014 Application might have been denied as incomplete or defective as a consequence of the failure to grant the Discontinuance Petition, it was not rendered moot thereby and the Common Council could not simply decline to vote on the 2014 Application. Thus, the City Respondents’ argument to the contrary notwithstanding, the court does have the power to compel the Common Counsel to vote on the 2014 Application and explicitly ordered it to vote on the special permit component thereof no later than its next regularly scheduled meeting following the date of the preliminary findings. …” According to Court documents.

Court papers further state: “…at any point from August 5, 2015 to September 27, 2015, the Common Council could have rendered a final determination simply by voting to deny the 2014 Application on the ground that it had become incomplete when the Discontinuance Petition was not approved. Instead, the Common Council refused to vote on August 5, 2015, except to “table the resolution” that contained the proposal to approve the 2014 Application, has refused to vote on the resolution since that date, and now contends that “FASNY’s only recourse is to submit an amended or new special permit and site plan application that does not include discontinuance of any portion of Hathaway Lane” – thereby, of course, commencing yet another review, and necessitating further delay and expenditure by FASNY of additional resources.”

“In sum, having repeatedly wrung from FASNY concessions and accommodations on FASNY’s original proposal, then extending the SEQRA process further by compelling FASNY to explore the North Street option and essentially enticing FASNY to submit a new application incorporating that very option, the Common Council illegally placed the 2014 Application in administrative limbo, has held it hostage since August 5, 2015, and is now waging a war of attrition in an effort to dissuade FASNY from pursuing what appears to be a legal use of its land,” Judge Lefkowitz determined. “The Common Council’s actions demonstrate that it has plainly and purposefully frustrated and thwarted the normal application review process, and will in all likelihood continue to do so, so that any attempt by FASNY to acquire a final determination of the 2014 application would be an exercise in futility. And considered in conjunction with the Common Council’s contemptuous disregard of this Court’s order, its actions are so unreasonable, duplicative and unjust as to make its conduct farcical.”

Part of FASNY’s rationale for suing the White Plains Council was the “Catch 22” situation that ensued during council votes. “In December 2013, the Common Council, by a 6-1 vote, adopted Findings pursuant to the State Environmental Quality Review Act (SEQRA) that determined that FASNY’s proposed school worked with certain conditions, including the discontinuance of a limited portion of a local street, Hathaway Lane, for public safety purposes. The Council thereafter, in August 2015, voted not to discontinue Hathaway Lane. On one hand, the Council required by a 6-1 vote a mitigation measure (i.e., the partial discontinuance of Hathaway Lane), but on the other, rejected the very same mitigation measure, a FASNY statement explained.

The White Plains Council has until May 9 to respond.

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