June 30, 2015

BY HAND AND ELECTRONIC

MAIL

Town Supervisor Chris Burdick

And Members of the Town Board
Bedford Town House
321 Bedford Road
Bedford Hills, NY 10507
Re:

T.M. Crowley & Associates / CVSHealth

Comments on Town of Bedford Proposed Zoning Amendment

Dear Supervisor Burdick and Members of the Town Board:

We serve as land use counsel for T.M. Crowley and CVS Health (collectively, "CVS"), a lessee of
the property located at 262-294 Katonah Avenue, Town of Bedford, and more commonly known
as the Katonah Shopping Center (the "Site"). 1 The Site is located in the Central Business ("CB")
district and is owned and operated by Firestein Management, Inc. (the "Site Owner"). CVS has a
lease for approximately 7,000 square feet of first floor space at the Site. The Town is considering
zoning changes that will impair the existing and proposed uses on this Site. Reference is made to
an amendment to Section 125-29.7(B) of the Zoning Code that was proposed by the Katonah
Village Improvement Society ("KVIS") with the alleged intention of protecting "local ownership
and a diversity of small businesses consistent with the unique character of Katonah" (the
"Proposed Law"). We submit this letter on behalf of CVS in opposition to the Proposed Law.
The Background And History Of The Existing And Proposed
Law Demonstrates The Town's Bias And Attack On CVS
And Other "Chain" And "Formula" Retail Businesses
The Town Board adopted Section 125-29.7(B) of the Town of Bedford Zoning Code on July 14,
2009 as part oflocallaw number 5 of 2009 (the "2009 Law"). Existing Section 125-29.7(B) states:
In the CB and NB Districts, no single permitted use, except
emergency service providers, shall occupy a space greater than
7,500 square feet in area on the first floor of any building.
The Town's only alleged reasoning in its 2009 discussion for adopting the 2009 Law was "to
distinguish the Town's older downtown areas from the commercial district located south of
Bedford Hills toward the Mount Kisco boundary.T' CVS disagreed with the appropriateness of
the 2009 Law, but in an effort to avoid a conflict with the Town, chose not to legally challenge the
I The
2

Site is identified on the Tax Map of the Town of Bedford as Section 49.19; Block 2, Lot 19.
See Town of Bedford Town Board meeting minutes from its July 14, 2009 public hearing.

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restriction at that time. This, despite the Board adopting the 2009 Law to specifically prevent
CVS from opening a store in the Town in 2009 that was greater than 7,500 square feet. Instead, in
reliance on the 2009 Law, CVS proceeded to make a substantial investment in securing their rights
in the Katonah Shopping Center for space totaling just under the 7,500 square feet limitation.
The Town's consideration of the 2015 Proposed Law to reduce the permitted size of single use
space from 7,500 to 4,000 square feet3 leaves CVS no choice but to oppose the Town's adoption
of such a prohibitive and exclusionary zoning restriction. If 7,500 square feet was sufficient to
serve the Town's purported purpose of adopting this restriction in 2009, then we ask - what has
changed or what now supports reducing this already restrictive number by almost half only six
years later in 2015? Respectfully, we do not believe there is such a legitimate basis or reason.
Rather, we believe the Proposed Law is a thinly disguised proxy to effectively prohibit CVS and
other chain or formula stores from entering Katonah or expanding their businesses in their existing
locations. Indeed, the Town Board acknowledged at its February 3,2015 meeting that it does not
have the authority to expressly exclude "chain stores" from the Town through zoning, but in the
past (i.e., 2009) it attempted to do so by contriving the 7,500 square foot restriction. The Proposed
Law is obviously an attempt at the "next best thing" by targeting CVS and its application.
The Town Board further acknowledged in February that CVS' s proposal to expand its existing
store in Katonah is "driving" its reconsideration of this already restrictive provision."
This
observation is consistent with the Town Board's conduct in 2009 and its discussions in 2015
confirming that the 2009 Law targeted CVS and its initial proposal to open a new location in the
Town of Bedford. As one Board Member noted at the Board's February 3M meeting -"I've seen
this movie already" - referring to the Board's prior consideration and adoption of the 2009 Law
made after the 2008 economic crash and in response to CVS's presence in the Town; 5
The Town Board recognized in the past and as recently as last February that it "cannot legislate
Chain Stores out of your community.'" It is unfortunate, but apparent, however, that KVIS and the
Town are now attempting to single out CVS and the Site for unfavorable treatment under the guise
of this proposed dimensional restriction.
Whether the Town Board recognizes it or not, the
Proposed Law does in fact target CVS, yet also collaterally harms a number of other businesses.
The Proposed Law Specifically Targets CVS's Pending Application
And Also Adversely Affects Other Local Properties And Businesses
The existing 2009 Law and the Proposed Law effect the CB and NB zoning districts in the Town.
The Town Planner indicated at the Town Board's June 16th meeting, however, that Staff has only
surveyed and evaluated properties in the CB district, which as the Board is aware includes the Site
3 Although the draft Proposed Law notes a reduction in the space limitation to 3,000 square feet, the Town Planner
recommended to the Town Board on June 16, 2015 that this number be modified in the Proposed Law to 4,000.
4 See Town Board February 3,2015 Meeting Minutes (video transcript) at 9:32.
S See Town Board February 3, 2015 Meeting Minutes (video transcript) at 6:01.
6 See Town Board February 3, 2015 Meeting Minutes (video transcript) at 6:32.

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and the CVS store in Katonah. On June 16th, the Town Planner indicated: "I can tell you exactly
what uses are and who they are but I don't think that is important tonight.t" We respectfully
disagree - as we believe it is very important for Board members to acknowledge for the record the
businesses and property owners we know will be effected by this prohibitory zoning scheme.
We submitted a Freedom of Information Law request on June 22, 2015 to obtain a copy of the
Town Planner's CB district property survey (in addition to other records) in advance of preparing
these comments, but we have not yet received the requested information from the Town.
Unfortunately, without having the opportunity to review these records we cannot confirm the basis
or methodology supporting the Town Planner's findings and support for the Proposed Law.
Nonetheless, we understand from the Town Planner's testimony at the June 16th meeting that:
from looking at this survey that 95% of the uses in the CB district
are less than 4,000 square feet in area. That's a substantial number,
and it's really only less on the fingers on my hand of how many uses
are over that in the CB district. If you drop that number to 3,000 sq
ft, which you have in front of you, that number drops considerably
into the 80 percentile range - a major, major difference. 8
This "five percent" includes important businesses and sites in the community, such as the
DeCicco's Family Market currently proposed to replace the existing A&P Supermarket at 122138A Bedford Road in Katonah, as well as the Bedford Playhouse in the Bedford Hills area.
These properties and their owners, among others, will be harmed by the Proposed Law. Indeed,
the CVS Site Owner, who has over 30 years of experience in the commercial real estate market,
agrees the Proposed Law "will adversely and significantly harm the local real estate marketplace."
KVIS and the Town are clearly taking aim at CVS, while trying to disguise their intentions by
rolling a number of additional properties into the purview of the Proposed Law. Unfortunately for
the "five percent" the Proposed Law will result in additional storefront vacancies and retail space
turnover, and severely effect the property owners' ability to successfully compete in Town.
The Town Seeks To Rubber Stamp
The Proposed Law To Thwart CVS's Application
The Town Board and KVIS appear to be aware of CVS's proposal to relocate and expand its store
since at least February 2015 - and have drafted and processed the Proposed Law in a manner
specifically attacking CVS's building permit application. As noted above, the Town's intention of
, excluding "chain stores" from Katonah by way of zoning was discussed at the Board's February
3rd meeting, but surprisingly not again until June 16th This timeline is rather curious given the
Town Board is admittedly willing and eager to process the Proposed Law in a "prompt" manner. 9

See Town Board June 16,2015 Meeting Minutes (video transcript) at 27:03.
Town Board June 16,2015 Meeting Minutes (video transcript) at 27:05.
9 See Town Board June 16, 2015 Meeting Minutes (video transcript) at 23:12.
7

8 See

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KVIS sent the Town Supervisor an email request on Friday, June 12,2015 at 4:55pm to have the
Proposed Law placed on the Town Board's June 16th agenda. We are not aware of any other
notice by KVIS to the public or to the Supervisor of their intention to present the Proposed Law to
the Board.1o Nonetheless, the Proposed Law was immediately placed on the Board's June 16th
agenda despite KVIS' admittedly "short notice". The Town Planner, however, apparently had
time to prepare the survey of properties that would be effected by the Law in the CB district only.
The Town also coordinated receipt ofa proposal from BFJ Planning just one day prior on June
15th to assist the Town "in evaluating zoning options for controlling the scale and development in
Katonah" - as apparently requested by the Supervisor in a prior telephone conversation. The
Town Board then acted at the June 16th meeting to set a public hearing for July 7th This timeline
seems to suggest the Town is moving quickly to review and adopt the Proposed Law. It also
further confirms the Town Board's "prompt" action is driven by CVS's pending application.
The Site And CVS's Pending Application
Is Consistent With The Character Of Katonah
The Site is approximately 2.36 acres, having access from both Katonah Avenue and Bedford Road
- yet it is substantially setback from view from these roads. The Site is located within the CB
zoning district, but significantly, it is not within the Katonah Historic District. The Town's
Comprehensive Plan describes its hamlets, including Katonah "in terms of their ability to provide
a high quality retail and business environment.v" The Plan suggests "keeping Katonah's business
districts within their existing bounds and enabling them to achieve their greatest vitality.,,12
CVS's existing use and proposed expansion within the Katonah Shopping Center meets these
goals.
The Site has contained the existing Katonah Shopping Center with large retail uses since 1959.
CVS
currently occupies approximately 3,370 square feet of space in the Katonah Shopping Center - in
the same location previously occupied by Katonah Pharmacy for more than 55 years.

See Westchester County GIS Historical Maps (1960 to 2013) attached as Exhibit A.

CVS's pending application does not result in a change in operation to the Site, or an increase in
traffic. It does not involve a drive-thru amenity or a change in traffic patterns or increased parking
needs. Instead, it simply involves the relocation and modest expansion of an existing retail
business within the same building in compliance with the existing Zoning and Building Codes.
CVS's expansion is designed specifically to comply with the existing 7,500 square foot restriction.
Consistent with this use and the historical character of the Katonah Shopping Center, CVS filed its
building permit application with the Bedford Building Department on June 18, 2015 to relocate

We have not received a response to our June 22, 2015 FOIL request and so have not reviewed all records.
of Bedford Comprehensive Plan (July 2002) p. 55.
12 Town of Bedford Comprehensive Plan (July 2002) p. 66.
10

II Town

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and expand its store to 6,928 square feet within the same space currently and historically occupied
by similar retail uses. CVS' s proposed location in the Shopping Center has contained a single
permitted retail use occupying first floor space greater than 7,500 square feet for more than 30
years - including both Gristedes Supermarket and Country Epicure during that period.
Katonah is also the current home to other chain and formula businesses, some within the Historic
District, such as Mrs. Green's Natural Market, Edward Jones, Houlihan Lawrence, Coldwell
Banker, Chase Bank, Bank of America and Wells Fargo. DeCicco's Family Market is also
seeking to replace the existing A&P Supermarket at 122-138A Bedford Road. In fact, there are
approximately 8 chain stores within an approximately 1,000 foot stretch of Katonah Avenue extending from the intersection of Katonah Avenue and Valley Road to the Katonah Avenue and
Bedford Road intersection (i.e., totaling approximately 1 existing chain store for every 125 feet).
CVS's pending application is consistent with the character of Katonah, complies with the existing
7,500 square foot requirement for the CB district, and constitutes an existing retail use permitted
as a matter of right. Nonetheless, CVS did not just file its application in June 2015 without the
Site Owner first speaking and meeting with Town staff and officials regarding CVS in March and
April of this year. The Town Board also referenced CVS at its February 3,2015 meeting.
It seems that in response to CVS and the Owner's upfront efforts to discuss the CVS proposal at
the Site, the Town Board and KVIS quickly organized and processed the Proposed Law with the
intention of developing a zoning scheme to use as a proxy to prohibit CVS's pending application.
The Proposed Law Does Not Serve A Valid Zoning Purpose
The straight facts are obvious. KVIS is opposed to chain stores and formula businesses. Period. 13
They and the Town Board know, however, that it cannot adopt a zoning law expressly excluding
these uses. As a result, KVIS has proposed a modification to the 2009 Law and its restrictive
dimensional requirement to skirt the limitations of the Town Board's zoning authority. They have
done this under a guise of protecting Katonah's "character", while failing to recognize that the
Proposed Law actually conflicts with Katonah and Katonah Shopping Center's prior retail nature.
The Town Board's zoning power is limited to serving the public safety, health and welfare and
must be exercised in accordance with the Comprehensive Plan.14 This generally includes laws for
the protection of the environrnentand the public's well being. KVIS' purported claim that the
Proposed Law is needed to "protect the unique character of Katonah" is disingenuous. It is
obvious that the Proposed Law will have a contrary effect given the history of uses in this area.
As discussed above, the Katonah Shopping Center has maintained the same footprint in Katonah
since 1959 and for decades contained retail uses larger than CVS's proposed space in the same

13 See local articles from The Record Review, dated June 19,2015, and The Bedford Daily Voice, from June 30, 2015,
2015, attached as Exhibit B.
14 See McKinney's Town Law 263; Burger King Corp., 89 Misc.2d at 905.

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location. Mandating smaller stores in the CB zone would conflict with this long-standing
character of the Site and Katonah. In fact, the Site is not within the Katonah Historic District.
In reality, the Proposed Law will not reduce traffic, or prevent overdevelopment. It will not
reduce density or serve to separate incompatible uses. It does not reflect a policy that it is
recommended in 'or even consistent with the Town's Comprehensive Plan. It is obvious, however,
that the Proposed Law's actual purpose is to appease KVIS by further stifling competition among
retail businesses in the CB district, and specifically preventing CVS from expanding in the
Katonah Shopping Center. This objective actually conflicts with the Comprehensive Plan which
seeks to enable Katonah's business districts to "achieve their greatest vitality". 15 By adopting the
Proposed Law, the Town Board would be acting outside its authority and preventing economic
competition.

The Town Board Cannot Adopt Zoning In The Name Of Economic Protectionism
At the June 16th meeting, KVIS offered support for the Proposed Law by asking the Town Board
to keep Katonah "free of ubiquitous large scaled commercialization" - cryptically referring to
their hope that the Town Board will prevent national chains from expanding in Katonah. 16 This
is something the Board clearly may not do expressly, or even indirectly through the Proposed
Law. "The purpose of zoning is not to serve as a control of business competition.t''" "The zoning
enabling statutes do not include any reference to control of competition as a purpose of zoning
regulation.v'"
Nor does the State Environmental Quality Review Act (USEQRA") permit
characterization of potential economic disadvantage due to competition as an "environmental"
impact." Adoption of the Proposed Law would violate CVS' s and the Site Owner's legal rights as the Dormant Commerce Clause of the United States Constitution "prohibits regulatory'
measures designed to benefit in-state economic interests by burdening out-of-state competitors." 20
The Proposed Law also serves as a policy of exclusion at odds with CVS's rights to equal
protection.

15 Town
16

of Bedford Comprehensive Plan (July 2002) p. 66.

See Town Board June 16,2015 Meeting Minutes (video transcript) at 20:32.

17 Blumemeich Properties, Inc. v. Waters, 14 Misc.2d 947, 178 N.Y.S.2d 905 (N.Y. Sup., 1957)(denial of permit for
garage and gas station Was improper where primarily based on board's finding there was sufficient number of stations
nearby to serve needs of residents); Fucigna v. Sahn 15 Misc.2d 304, 308, 179 N.Y.S.2d 64, 69 (N.Y. Sup., 1958)
(zoningordinances cannot be used to stifle competition or to curtail private enterprise); see also Sun-Brite Car Wash,
Inc. v. Board of Zoning and Appeals of Town of North Hempstead, 69 N.Y.2d 406 (1987) (landowner lacks standing
to challenge decision where only substantiated Objection is threat of increased business competition).
18 Salkin, P., NY ZoningLaw and Practice [2014-2015 update], Section 6:21. Zoning to Regulate Competition.
19 The SEQRA Handbook. 3rd Ed. (2010), p. 118 (Response to Question 9); Bell AU. Mobile of Rochester L.P. v.
Town of Irondequoit, 848 F.Supp.2d 391, 401 (W.D.N.Y. 2012)(District Court holding that "speculative
environmental loss, such as concern for property values, is also not an environmental factor under SEQRA").
20 Island Silver & Spice, Inc. v. Islamorada. Village ofIslands, 475 F. Supp. 2d 1281 (S.D. Fla. 2007), judgment aff'd,
542 F.3d 844 (l lth Cir, 2008); see also Cove Pizza, Inc.v. Hirshon, 61 A.D.2d 210 (2 Dept 1978); East Coast Dev.
Co. v Kay, 174 Misc.2d 430, 667 N.Y.S.2d 182 (N.Y. Sup. 1996)(site plan denial for commercial building for
franchise business in commercial zone was improperly based on competitive economic effect on downtown).

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Federal Courts addressed the interstate commerce issue in the context of zoning in Island Silver &
Spice. Inc. v. Islamorada. Village of Islands. In Island Silver the Village adopted a local
ordinance that subjected franchise businesses to specific dimensional requirements, including
overall square footage limitations, similar to the Proposed Law. The alleged purpose of these
requirements was to preserve a small town atmosphere by precluding national retailers, including
Walgreens Pharmacy. The Court confirmed that "the practical effect of the instant ordinance
discriminates between local and national business. Even though on its face the statute allows
formula retail stores, in actuality, the ordinance eliminates national retail chain stores because they
cannot operate within the strict size constraints imposed by the ordinance.r'"
Bedford's Proposed Law has the same effect on property and chain store owners in the CB district.
The Town is attempting to draft the Proposed Law in a manner that circumvents the laws that
protect retailers from discrimination. As the Court in Island Silver confirmed - "the practical
effect of the ordinance favors local interests at the expense of national chains. It is irrelevant that
a local chain store could potentially be restricted in the same way as a national chain." 22 We
believe that the Proposed Law is similar in that it will unfairly burden CVS's store and
application.

The Proposed Law Improperly Targets "Users" Rather Than "Uses"

The authority of a municipality to regulate land relates only to the real estate involved in the
Proposal, and not the person or company who owns or occupies it.23 KVIS and the Town Board
are seeking to circumvent this well established principal of zoning law to prohibit retail businesses
owned or operated by "chains" or "franchises" in the Town. Passing the Proposed Law and
discriminating against CVS because it is seen as a franchise would violate this fundamental rule.
The Proposed Law is an ad hoc exclusion of CVS as a "chain" and an attack on CVS's pending
building permit application." This is clearly confirmed by a long standing case involving another
Westchester County community which confronted a similar set of circumstances. In Burger King
v. Larchmont, neighbor opposition encouraged the Village to delay a zoning compliant application
for a Burger King while the Village amended its zoning law to effectively exclude fast-food
franchise restaurants. The proposed site was commercially developed and surrounded by retail
businesses. By the time the Village adopted its amendment the applicants had invested a
considerable amount of time and money in seeking the permit, and preparing the site. The Court

Island Silver & Spice, Inc., 475 F. Supp. 2d at 1291.

Island Silver & Spice. Inc., 475 F. Supp. 2d at 1291.
23 See Dexter v. Town Bd. Of Town of Gates. 36 N.Y.2d 102. 105 (1975) (rezoning invalid when conditioned on
limiting use of land to certain company); Town of Mount Pleasant v. Legion of Christ, Inc., 7 N.Y.3d 122
(2006)(where proposed use complies with the Code. the owner is irrelevant); Feneck v. Murdock. 16 Misc. 2d 789,
181 N.Y.S. 2d 441 (Sup. 1958)(grant of a variance runs with the land and is not a personal license to the land owner).
24 See Burger King Corp. v. Village of Larchmont, 89 Misc.2d 901, 395 N.Y.S.2d 922 (N.Y. Sup. 1977), judgment
aff'd, 52 A.D.2d 898 (2d Dept. 1976). affd. 41 N.Y.2d 1097 (1977).
21

22

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nullified the amendment, noting "[tjhe anatomy of the process was to try to zone out a permitted
use which the legislative board thought undesirable, probably as the result of local pressure." 25
The situation in Larchmont mirrors the situation that CVS is confronting with the Town Board's
"prompt" review and consideration of the Proposed Law. The Town has been aware of CVS's
expansion for several months. CVS's pending building permit application is fully Code compliant
- proposing to use existing retail space in an existing building. It has been designed to specifically
meet the already restrictive 7,500 square foot standard. CVS has invested considerable time and
resources into its proposed relocation and is entitled to Town approval. And while the 2009 Law
has been in effect for nearly 6 years, the Board and KVISare only now in a rush to amend it.
In addition to the Board's unexplained need for a "prompt" review of the Proposed Law, the Law
itself, like in Larchmont, is inconsistent with the existing and prior development of the area.
There are multiple "chain" gas and service stations in Katonah within close proximity to the Site,
including a Mobile that screens CVS from view from the Katonah Avenue and Bedford Road
intersection. Mrs. Greens Natural Market and a number of retail franchise banks are located along
Katonah Avenue, with DeCicco's Family Market proposed to replace A&P on Bedford Road.
Further. there is no distinction between the generation of traffic or activity between a single retail
use such as 6,928 square foot CVS, compared to multiple smaller stores in the same space. It is
evident that the Proposed Law is not concerned with the uses themselves, but just their owners.

The Proposed Law Will Exacerbate The Already

Restrictive Nonconforming Provisions Of The Zoning Code
The Zoning Code restricts the expansion of existing dimensional nonconformities. "No permit
shall be issued that will result in the increase of any dimensional nonconformity, but any building
or structure or any portion thereof may be altered to decrease its dimensional nonconformity.v'"
Adopting the Proposed Law would result in creating a number of additional dimensionally
nonconforming structures by virtue of businesses already existing in the Town, many of which are
located within larger buildings, such as the Katonah Shopping Center. The Proposed Law would
thus thwart expansion of successful local businesses that are just under or over the 4,000 square
foot threshold, sending a message to business owners that the Town does not want good
businesses to expand - regardless of the time and resources they have invested in the community.
This effectively tempers the vitality of the Town's hamlets given the economic pressures small
businesses are under today, including increasing competition with web based companies,
financing realities in the post-2008 economic crash and continued tax increases at all levels. We
believe the Town's existing regulations. together with New York's environmental regulations
provide the Town with more than sufficient control over the "character" of the Town's hamlets.

25
2(j

Burger King Cm}?. 89 Misc.2d at 904.

Zoning Code 12S-1I(D).
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The Town Board Has Not Processed The Proposed Law

In Accordance With Proper Applicable State And Local Laws
AU "discretionary" decisions of an agency to approve, fund or directly undertake an action which
may affect the environment are subject to review under SEQRA. This includes the Town Board
and its consideration of the Proposed Law as it is not exempt from the SEQR regulations. Yet, it is
not clear. how. if at all. the Town Board has complied with its obligations under SEQRA.
The Board has failed to confirm what, if any, other agencies are involved or interested in the
review of the Proposed Law. and to receive or prepare an Environmental Assessment Form. We
are also not aware of the Board making a preliminary classification of this action, which we
believe should be classified as a Type 1 given it involves local and national Historic Districts,
among other areas. As noted above, the Town Board simply received KVIS's email request.
quickly placed the Proposed Law on its June 16th agenda and then set a public hearing for July 71h
Compliance with SEQRA or the Town's specific Zoning Amendment procedures is not apparent.
Article XIII of the Zoning Code requires the Town Board to refer the Proposed Law to the
Planning Board to obtain a report within 45 days and before the public hearing. The Town Board,
however, set the public hearing before receiving such report in an effort to expedite a review it
intends to rubber stamp. It is also not clear how, if at all, KVIS complied with the Code's
threshold submission requirements for filing a zoning petition to the Town Board as we are not
aware of KVIS' filing containing the requisite number of owner signatures required by Section
125-131.
Ultimately, we believe the Town Board has allowed andlor assisted in moving the Proposed Law
forward as "promptly" as possible for purposes of thwarting CVS 's pending application. As such.
we believe it would be appropriate for that the Board to adjourn the July ih public hearing until
these issues can be discussed further and resolved in accordance with the applicable laws.
Conclusion
We appreciate the opportunity to comment on the Proposed Law and voice CVS's many concerns,
and we look forward to continuing the dialogue with the Town Board and its Staff. In the interim,
should the Board or Town Staff have any questions 01' comments, please feel free to contact me.
Thank you in advance for your cooperation and consideration in this matter.

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cc:

Deirdre Courtney-Batson, Chair and Members of the Planning Board

Joel Sachs, Esq., Town Attorney
Eric Gordon, Esq., Deputy Town Attorney
Christian Potter, Esq., CVS
Tracey Roll, TMC

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