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Published: 14 December 2009

Created: 14 December 2009

Last Updated: 14 December 2009

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Perhaps you have noticed a large concrete circular structure under construction on Ardsley Road. What is it, and what was there before? According to greenburghny.com, the site was previously home to the Metz Reservoir, which was an open reservoir, constructed in 1904.

The reservoir is part of the United Water New Rochelle, Inc. (UWNR) distribution system and is the primary source of water storage for 12 Westchester County municipalities, including several sections which are located in the Town of Greenburgh.

On January 5, 2006, the EPA enacted a rule to protect public health against Cryptosporidium bacteria, Guardia and other pathogenic microorganisms in drinking water from open reservoirs.

The rule requires public water systems that rely on open reservoirs to either enclose the reservoir or to treat the water being discharged to inactivate potential microorganisms. All public water systems were required to be in compliance by April 1, 2009 or to be on a schedule to meet the deadline. United Water’s decision to replace the open reservoir with a covered, ground level, water storage tank was made in response to safety issues and concerns from the Department of Homeland Security about open reservoirs in residential neighborhoods.

However, many zoning regulations were bypassed in the planning and construction of the “flying saucer”, as some neighbors call it.  Below find a letter from Edgemont resident Robert Bernstein outlining the process:

(From Robert Bernstein)

As a local civic leader, I have come across many outrageous situations involving the Town of Greenburgh, but none seems to be more exasperating than the current situation involving the federally required renovation of the four-acre Metz Reservoir site along Ardsley Road across from the Greenville Elementary School.

This past January, Town officials allowed United Water of New Rochelle, Inc., the utility which owns the reservoir, to replace it with a massive concrete-covered multimillion gallon storage tank. Such action was in direct violation of the Town’s zoning code requiring the utility to first obtain a Special Permit from the Town Board -- required for all construction projects by utilities in residential neighborhoods -- which not only requires notice to all property owners within 500 feet of the site, but a public hearing to consider imposing  “such conditions as the Town Board may deem appropriate” for the protection of adjoining properties and the character of the neighborhood.  

The Special Permit requirement is mandatory and may not be waived. So, the first thing Town officials did for United Water was strip the residents of their right to notice and a public hearing.  

In addition, Town officials waived site plan approval which allowed the utility to avoid having to present a site plan for approval by the Town’s planning board, which also would have required notice to the neighborhood.  The waiver required a written finding by the building inspector, the town engineer and the “planning board secretary” -- also known as the Commissioner of Community Development and Conservation -- that the structure being built will not “substantially modify the site” and “will not in any other way have a substantial impact on the character or environment of the surrounding area.”   

It’s not clear how such a finding could ever have been made. The project required the four-acre site to be removed of all trees and vegetation making it look like what residents there call a “lunar landscape,” a new covered structure was being built – residents told the town board it looked like a huge “flying saucer” -- and the installation of a new drainage system -- all changes which do “substantially modify the site.”   

And the clear-cutting of the four-acre lot obviously had a substantial impact upon the character and environment of the surrounding area. Just ask any of the neighbors in Edgemont who live there.  Or ask the kids who play in Greenville’s playgrounds and playing fields which overlook it. Or just drive by. The condition is plainly visible from the road.  

But it gets worse. Town officials also waived a steep slope permit. The Town Code requires planning board approval prior to disturbance of any excessively steep slopes, defined in the code as greater than 35 degrees.  A waiver may only be granted upon finding of an “emergency.”  The town code defines emergency as a “condition creating imminent danger to public safety.”  However, no such condition existed.  

Finally, the Town ignored tree permit requirements. The Town Code requires a permit to remove any trees of six inches of diameter or more on property of one acre or more, and further requires that notice with a right of appeal be given to adjoining property owners .  Here, the only notice residents received was the noise of all existing trees and vegetation being removed. 

Once construction began, neighbors objected to the huge eyesore that had been created in their backyards. Town Supervisor Paul Feiner was contacted; neighbors also contacted me as ECC president. 

On Tuesday, May 5, a meeting was held with town officials, residents and officials from United Water. The meeting was held at the Greenville School. Town officials present included Feiner and council members Francis Sheehan, Sonja Brown and Diana Juettner, as well as  Commissioner of Community Development and Conservation, Thomas Madden.  Town clerk Judith Beville was there as well, but even though this was an officially noticed town board meeting, she took no notes. Thus, no minutes were kept. 

At the meeting, neighbors wanted to know why they were never notified about the project, and Madden admitted that he had signed off on the waiver for site plan approval. However, he wouldn’t say why.  Nor would he agree to release the waiver or post it on the town’s website. 

Feiner then admitted to the residents that the Town had made a mistake, and asked them to “trust” him, town staff and United Water to make things right. A request to rescind the site plan waiver was rejected by Feiner and other town officials on the ground that if residents now insisted on the oversight to which they were entitled, United Water wouldn’t do any landscaping before the end of the planting season in June – which meant residents would have to live with the lunar landscape in their backyards until the next planting season.

In an email dated May 6, Feiner recommended to Madden that “we should obtain a binding agreement from United Water” for, among other things, tree plantings, a bond to guarantee replacement of trees if they die, an agreement to plant some trees on people’s properties if there are “holes in the landscaping plan,” and to hold off issuing a “Certificate of Occupancy” – his words -- until the town board signs off on the project, following a “walk through” with United Water, residents and the town board.  Residents were copied on the email. 

On Sunday evening, May 10, Feiner sent a further email to residents saying that Madden was working on “several documents” which would be ready to be shown to them on “Monday or Tuesday.”

On Tuesday, May 12, the Town responded to a FOIL request for a copy of the Site Plan Exemption. It included a single page site plan exemption form, dated January 26, 2009, signed by Madden, John Lucido, the building inspector, and Michael Lepre, the town engineer. However, it also included a 13-page memo, purportedly also dated “January 26, 2009,” which explained the reasons for the waiver and listed certain “conditions” which would have to be met before the Town would issue a “Certificate of Completion” for the project. 

If not for the date, the January 26 memo would appear to have been one of the documents created by Madden that weekend. Among other things, it included almost verbatim the various “recommendations” that Feiner had asked Madden to implement on May 6 as part of a new “binding agreement” with United Water. The memo also made representations about various engineering studies that were supposedly conducted, along with analyses of landscaping plans. 

Various engineering reviews and reviews of landscaping plans were mentioned in the “January 26” memo in order to show that efforts to mitigate the substantial environmental harm posed by the project were considered and implemented. However, it didn’t dawn on the authors of the “January 26” memo that if remedial measures were required, and they evidently were, then there was never any legitimate basis for granting the site plan waiver in the first place.  

The authors of the “January 26” memo also failed to take into account their collective failure to require United Water to get a Special Permit from the Town Board, as the zoning  code required.  They also overlooked that because a Special Permit was required, the three town officials who granted the waiver didn’t have the legal authority to do so – only the Town Board could do it. 

On Wednesday, May 13, Feiner issued a press release advising Edgemont residents that Madden had prepared a memo “answering questions” that residents may have about the Metz reservoir project. To get the memo, however, residents had to furnish Feiner their email address. The Town refused to post the memo on the Town’s website. Madden also refused to furnish a copy to me personally.

Madden’s May 12 question-and-answer document relied on his purported “January 26” memo, which was attached, along with the site plan waiver document.  Residents who saw the documents could easily see for themselves that content in the January 26, 2009 memo came out of their May 5 meeting with Town officials. Furthermore, no other documents that Madden supposedly was working on that weekend in response to residents concerns and Feiner’s email were ever sent to them.  

Depending on motive, falsifying town documents could be a crime under New York’s penal code prohibiting the falsification of business records.

Residents are now demanding an immediate independent engineering review of the entire site -- something they would have been entitled to had the special permit procedure been followed and site plan approval not been waived. There’s been no response so far from Town. 

But all this begs the questions:  why would the Town grant these exemptions in the first place, violate the town code requiring town board approval, and then, when called on it, instead of simply apologizing for a mistake, appear to have deliberately falsified town records to make it appear as if substantial mitigating issues were considered when they weren’t considered -- and if they had been considered, there would have been no legal basis for an exemption.