Lawyer says with property now in violation, SG will take legal action against the town
With 64 Comments
Monday, January 3, 2011
by Christine Yeres
Editor’s Note: This is a rerun of the article and its comments referenced in the Letter to the Editor by Rob Greenstein, above.
In a terse 300-word letter to Supervisor Barbara Gerrard and members of the town board dated December 29, 2010, Summit Greenfield’s attorney, John Marwell, Shamberg Marwell Davis & Hollis, P.C., argued that because Reader’s Digest has left Chappaqua Crossing, the property is now in violation of the town’s zoning regulations, a condition which discourages prospective tenants and causes current tenants to question “the viability of their continued tenancies.”
Consequently, he wrote, Summit Greenfield will take legal action to have the restrictions lifted, seek to recover damages from the town and pursue tax assessment reductions.
In a Chapter 11 settlement in 2009, Reader’s Digest was released from its 20-year lease with Summit Greenfield, agreeing to pay rent through the end of 2010, and moved the last of its employees to offices in White Plains and Manhattan three weeks ago.
Now that Reader’s Digest has left Chappaqua Crossing, only three tenants remain, occupying a total of 100,000 square feet. Since the zoning regulations restrict the total number of tenants to four, and further specify that one of the four must occupy at least 200,000 square feet, “the property now violates the minimum square footage requirement in the B-RO-20 zoning regulations, as no tenant now occupies a minimum of 200,000 square feet,” according to Marwell.
The attorney goes on to say that because “the property now violates existing zoning requirements, our client advises that prospective tenants have refused to consider pursuing occupancy at Chappaqua Crossing, and we expect they will continue to do so. We are also concerned that the existing tenants at Chappaqua Crossing may become concerned about the viability of their continued tenancies.”
Marwell further notes that since his client has had petitions for relief from the tenant and square footage requirements before the town “since at least 2007, and the Town has failed and refused to take action on the pending requests to remove these restrictions, we advise [New Castle town board members] (a) that we will seek court intervention to lift these restrictions and damages [sic] from the Town as a result of its failure to have removed these restrictions; and (b) that we will seek a very substantial reduction in the assessed valuation of the Chappaqua Crossing property, as the entire property is now in zoning violation and presumably untenantable, while the existing buildings and the extensive grounds must be maintained by the owner.”
The town board received the letter from Marwell the day before the its December 30 work session on Chappaqua Crossing, during which the board consulted its outside counsel, Bob Davis of Bryan Cave, for over an hour. Supervisor Gerrard did not respond to NCNOW’s invitation to comment on Marwell’s letter.
To view Marwell’s letter in its entirety, click HERE
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To view NCNOW’s archived articles and letters—in chronological order, newest to oldest—on Chappaqua Crossing and Summit Greenfield’s application for a zoning change, click HERE.
By this same reasoning, if Summit Greenfield lost any one of the smaller tenants they would be “in violation” of the zoning too! It’s no VIOLATION that SG has lost a tenant. They need to go find one. They’ve known for more than a year that RD was leaving. And the supervisor explained why the commercial had to be decided along with the residential—the whole package together, until the environmental review is over. Surely SG’s attorneys know this too. Is the attorney talking about the difficulty of getting a tenant smaller than 200,000 square feet to commit to space that requires 200,000? Or to other space over there that is not yet lease-able because SG has hit its tenant cap? That would surely discourage tenants from committing. But IN VIOLATION because RD moved? Hogwash!
Summit Greenfield’s attorney states “the Town has failed and refused to take action on the pending requests to remove these restrictions”. This is not a fair accusation. Had the developer truly been interested in expanding the commercial use of the site, it would not have coupled a request for a commercial use variance with a massive residential development.
As Barbara Gerrard recently stated “both sets of lawyers, Summit Greenfield’s and the town’s, have tried hard to find a way to separate the commercial zoning restrictions from the combined application of commercial and residential zoning, especially once Reader’s Digest Company signaled its intent to leave the premises by year’s end. But the two could not be separated. The Town Board is unable to change the zoning code concerning the commercial space under SEQR [New York State Environmental Quality Review Act],” explained Gerrard, “until the process is completed because it could be considered to be ‘segmenting’ the SEQR process.” One of the primary purposes of SEQR is to force municipalities to look long and hard at large development proposals in their entirety before approving them. Consequently, the courts may not look kindly on “segmentation,” and view it as an attempt to take one part of a project and speed it on ahead. http://www.newcastlenow.org/index.php/article/new_chappaqua_crossing_counsel_insist_they_were_blind-sided_by_new_cas/
Summit Greenfield’s legal team is well aware that the Town Board is unable to act on their commercial request until the SEQR process is complete. This is just more of the same posturing.
I am here only three years and the angst and anger over this is amazing…..and to think I moved here from Manhattan to give my kids more space and a better place to live…..ha….that seems funny now….perhaps Manhattan is the cheaper and nicer place to live when this whole debacle comes to conclusion. All I can say is that I agree and appreciate Mr. Greenstein’s point of view, not to mention his energy in pushing back on this. What do you do all day Mrs. Gerrard? Perhaps in your free time, please consider what you’ll do at the end of your term, because you don’t seem to do anything to help people like me who have moved here, suffer endless power outages when it drizzles, reduce services like garbage collection. Perhaps next time, it snows and my power is out, i can come over to your house and stay with you.
sounds like another board certified disaster in the making. can these people do anything right? now, homeowners may be faced with another tax hike to cover this lawsuit. the incompetencies just keep on coming….badly negotiated, once a week, garbage pick-up; 250k gazebo nobody really wanted; burglar alarms now have to be registered on top of the fees for the police coming to your home; etc. etc. and the piece de resistance….30% raise for bg!(i know, she’s really “smart” and she works “very hard.”) one more thing, just try having your property devalued for tax purposes. you have a much better chance of winning the lottery.
SG’d claim that they are now in violation so change the law is no different than the kid who kills his parents then begs the court for mercy because he is an orphan.
Here we go. Obstruction, just say no to anything, mob mentality, refuse to negotiate, give no ground, avoid the slippery slope, put our heads in the sand and assume everything we say is right and everything they say is wrong, blast the motivation and ethics of the developer (because all developers are profit mongering evil-doers) and even our own board members and a few fellow citizens who dare stand up for reason, and here’s where we end up.
It looks like we’ll end up with judges and lawyers deciding what will happen with our tax revenues from Reader’s Digest, and to the property itself.
Congratulaions obstinant opponents of the project, you “win”. Us regular citizens who support reason and vigilint negotiation? Well, we all lose.
Town Board, I suggest you put a special reserve aside for legal fees and damages fees, and to cover the potential short-term reduction in tax revenues. Citizens, prepare to pay for our foolishness.
To CLITTLE…aka SeeLittle and knows little…There has been no opposition by the Town Board and NO opposition coming from the community as it pertains to making accommodations to SG in order to make and keep Chapp Crossing a viable commercial site. That is what SG bought- commercial. SG also knew Readers Digest was leaving and SG spent all of its focus, time, energy, and experts on trying to convert/rezone this commercial property into residential. Had SG focused on commercial use and came to us with rationale and workable plans for obtaining and keeping commercial tenants none of this would be happening. It’s about time you CLITTLE understood that this developer is a sophisticated, well armed and funded real state developer who is trying to game the system at our expense. I would rather call them out and fight back rather than be intimidated. Right is might. You must have been one of those kids in school that forked over your lunch money everyday to the bully rather than stand up for yourself. Most in New Castle are comfortable making appropriate accommodations and concessions so SG can have viable commercial project. That is what they bought. We do not owe them rezoning for residential - PERIOD!
Maybe you don’t realize, CLittle, that the town changed the zoning almost as soon as SG had purchased the RD property. The zoning at first allowed only ONE large other-tenant than RD. That was when SG told the town that Pepsi was going to be a tenant. That fell through. Any court will see that the town tried, from the beginning, to deal fairly with SG. It has been SG’s choice to ask for more and more and to spin it as a GREAT BENEFIT for New Castle. Remember all the brochures telling residents “Gee, you sure could USE the $5.2 MILLION our project will put into your coffers!” That was b.s. And the developer is still B.S.-ing us.
It is amazing that SG and their paid spokesperson keep saying that they are “in violation of existing zoning” because they no longer have a tenant occupying at least 200,000 square feet.
Not so. The reality is that Summit Greenfield, in their first petition after closing on the Readers Digest property, asked the Town Board to amend zoning to permit them to have up to 4 commercial tenants provided that one would occupy at least 200,000 square feet. They were granted what they requested. The zoning does not make it a violation to have fewer tenants. They are not in violation by having fewer tenants at this time. If they have potential tenants for the commercial space who want smaller spaces why not say so.
However the reality of SG’s new position is more smoke and mirrors. Just 2 months ago, Summit Greenfield’s lawyers told the Town Board at a public meeting during October was that they could not lease any commercial space because it was all so outdated AND that they would not be able to afford to update any of the commercial space until they had built and sold ALL of the residential units they were seeking, and could not do it without those profits. Do they really think we do not remember what they say from one meeting and press release to the next? Now they are saying something else that seems to directly contradict what they told the Town at that time. How can we rely on anything that they say when they keep contradicting themselves?
Don’t frivolous lawsuits, when contended, allow for triple damages?
Thank you Mr. Marwell for our new gazebo and the restoration of our twice weekly garbage collection.
Ah, “see little knows little”...the “kid who forked over his lunch to the bully”...nice way to engage in this debate, and an illustration of why we are where we are.
I agree the Town Board at times tried to reasonably deal with SG. It’s the citizens I have a problem with. I saw the mob—yes, the mob—in the video of the town meeting where citizen after citizen stood up and gave a long diatribe which can be summarized as simply…no, no, no, no and no. Some were reasonable in the way they said “no”, others were very much the opposite. And the poor few who stood up an expressed moderation—they were destroyed, just like I was above, and will be below I’m sure.
This concept that “the developer is well armed, sophisticated, etc” is accurate, but the reaction of saying no to everything as a result is what does the damage. And it reveals such weakness on our part, as if we can’t match their sophistication with the town’s aggregate intelligence and abilities in a set of negotiations.
Our inability to do so will result in pitting our attorneys against theirs—and that’s a place, with all due respect to our counsel, we’ll get our butts kicked. And if we don’t, we’ll at least be subject to the decisions of outsiders (judges, attorneys) instead of by our own representatives working in a constructive (but again, vigilant) debate and negotiation with SG.
And for the record, I never gave up my lunch money to any bully. Truth be told, if I do say so myself, no one would have dared. : )
We are better than this, citizens of Chappaqua. Let’s find the best win-win solution!!
It seems to me that the town should find a way relieve SG of the 200,000 sq. ft. tenant requirement without opening the door to unlimited tenants or other unforeseeable development.
It is crucial that the town dig in its heels, including vigorously defending a lawsuit, to prevent any residential development of that property. People should be aware that if the combined residential/commerical proposal goes through, down the road (and perhaps as little as a couple years), the developer will “establish” the commercial side is not viable and seek to amend the entire property to residential. This would have a reasonable chance of success once that door has been opened to any residential development of the land. That is what the law might allow and if you are worried about a lawsuit, worry about the cost and energy that would go into that fight. The town is in a much stronger position now, arguing that any residential development is not proper for the community for a host of reasons. Imagine what might happen, the existing commercial buildings bulldozed and town houses all over the land plus traffic plus school costs, etc. Is that what any of us want? It would ruin Chappaqua.
@CLITTLE… you are the one that has digressed and allowed this discussion to deteriorate. You seem to always take the side of SG. You then criticize and chastise the “citizens” that you say you have a problem with. I attended two town meetings when Chapp Crossing was discussed. I was at the meeting that you saw a video of. There was no mob as you describe us. Nobody was “destroyed” as you say. That is an absurd assertion by someone who clearly is not informed - you! We are all concerned citizens that can see through the flimsy, self serving, and dishonest tactics of SG. All we are doing is standing up for what is right.
You on the other hand have been quick to condemn New Castle residents yet fail to recognize the inappropriate and manipulative dishonest tactics of this developer. The win - win solution you seek is simple. We should assist SG in making Chapp Crossing a solid and viable site. We can and should relax some zoning, parking, etc in order to get commercial tenants. Then we get commercial tax revenue and SG gets rental income which is what they bought this property for from the onset. There is not and has not been a “just say no to everything” attitude. Any discussion regarding residential should be met with the No, NO responses because SG bought a commercially zoned property. I understand now why many comments on this blog have accused you of being a pawn of the developer. You certainly act that way.
Clittle,
“The poor few who stood up” were not residents of this town, just like you.
Were you one of them?
I too think the town has tried to find a reasonable resolution but has been thwarted by the developer’s goal of getting residential development at CC. The town simply cannot, under the law, approve the all commercial proposal while the environmental review process is ongoing. Other postings explain this in detail. On top of that, there has indeed been, and continues to be, a good amount of BS shoveled towards the citizens of Chappaqua. That is not the way to influence people. In fact, it often has the opposite effect and SG, its lawyers, its spokesperson and the negative particulars of the plan they advocate are the reasons for the ever growing chorus against them—not our board.
Under the facts of this case and applicable law, SG has no damages whatsoever. It is an utterly laughable contention on their part born out of desperation. Yes, I am a litigator.
” Do they really think we do not remember what they say from one meeting and press release to the next? Now they are saying something else that seems to directly contradict what they told the Town at that time. How can we rely on anything that they say when they keep contradicting themselves?”
Mr Swirsky,
I was invited several years ago, along with some of my neighbors, to attend a meeting at Readers Digest.Representatives were their to answer questions about the residential development. They had all the glossy material and fancy renderings, as well as the obligatory cookies, doughnuts, and coffee. At that meeting representatives of S-G told us that most of the units were already “pre-sold”.
So, to answer your question about whether we are supposed to forget what they say from one meeting to the other…the answer is obviously…Yes!
Clittle,
After some reflection I can see your point we do need a win win for everyone. I think only smaller development of residential would be viable so not to impact the school budget and drive taxes higher.
I would like the input of more citizens to help SG get completed.
Rather than pursuing the obvious and obtaining commercial leases for commercially zoned premises, SG has embroiled itself it the lengthy process of seeking a rezoning to residential use. It now cries out that the process is too time consuming to suit its needs. I say make use of the property as it was zoned. You do not need to squeeze the last nickel out of the project. If you find it difficult to locate larger commercial tenants (which I find incredible as space is always a function of price), seek relief on that issue. Stop wasting the Town Board’s time and resources on this obviously doomed endeavor.
To Longtime Resident—It would be a terrible mistake to allow any residential development at that site because once the door is opened for that type of use, the town will probably not be able to stop the entire property from being developed as condos in just a few years. The way that would happen is, the developer would claim the commercial side is unmarketable despite its suppposed good faith efforts and would claim hardship as a basis for seeking rezoning of the remaining commercial property to residential. Then they would tear down the existing structures and put up condos. There are so many problems with putting any residential there that the town has a reasonable basis for saying no to even a partial residential plan. But those arguments are significantly undercut if you allow a little residential now and the developer sets the groundwork for hardship going forward. It is much harder to say a “little” residential is okay and then stop a “little more” residential than it is to say that all residential at that site is harmful to this community. There simple is no viable way to definitively control the residential once the door is open. To save the quality of life of this town, there can be no residential there at all. I am not an alarmist: those in the real estate industry know the prospect I have laid out about all commercial based on a claim of hardship is very real indeed and it probably was SG’s plan all along.
To Longtime Resident thanks for the acknowledgement.
It takes a bigger person to admit they are misled but now we can forge ahead together. A win win is the only way.
@clittle
i too, along with my husband, very much agree with you and there are others. the two sides are too far apart to come to consensus, in my opinion. many residents are irrational in their opposition to any residential units at CC and will block out any discussion of that happening. (it’s a nimby mentality.) i saw the same thing when they tried to build a second middle school. homeowners hired attorneys to keep it from their streets. some of the most selfish, self serving “citizens” you’d ever want to meet. alas, we all will pay for the lawsuits and i don’t blame the developer.
To Clittle and others who would be OK with residential. I ask you this…Would you be OK if a neighbor of yours who suffered some financial hardship petitioned the town and was able to rezone a residential house into commercial so that this neighbor was able to recoup some money? Put another way. how would you feel if the residence to your immediate right , left, or across the street were to open a restaurant, dog kennel, or other small business which would bring noise and congestion to your residential community? Because if we rezone Chapp Crossing to residential to accommodate an owner who has lost money or made a bad investment there is nothing from stopping any resident from rezoning their home to commercial. After all we should all be entitled to recoup losses after the value of our real estate has declined. This is a very slippery slope. This property is commercial, it was bought as commercial, and the only win - win here is for our Town Board and residents to assist SG in making it commercially viable. Residential is not an option. If it is then your neighbors may someday open a business in their home right on your block!
Speaking of that decision to build an new middle school… where have you been living, “good luck with…”? Construction of the new middle school was the self-serving part of THAT story. That was a time when only slightly over half of residents believed our community deserved a new middle school—and that the prosperity would last forever. That half took the other half with it and we’re all still paying for it. I wish the board of ed HAD listened to what you characterize as NIMBY resistance to the middle school. We’d be in much better financial shape now if they had! I find generally that what you call the Not-In-My-Backyard activists are much better informed than the rest of us. YOU, I’m sure are better informed about the issues closest to YOU, wherever YOUR backyard is. I welcome backyard testimony in every case!
Each of your posts are very interesting, a few comments for each starting a the most recent one:
1. To “good luck”. Yes, there is much NIMBY going on here, and it is understandable but if it were in my backyard I think I would be concerned but I would try to be fair and find the best solution, and not “just say no”. Also, there is a lot of irrationality as is obvious just looking at many of the posts above, but there are also some people in opposition who are reasonable who you and I just disagree with. Point is it’s not ALL irrationality, but there is a lot of it.
2. To “Longtime Resident”. Bravo, someone who is reasonable. But you can see what happens when you express any moderation whatsoever. The reaction is, say no, say no, say no! Just not practical or right.
3. To “Wonder who you really are”. No, I didn’t stand up. You know why? I’m ashamed to admit it, but I see the vitriol, hatred, and ridicule put upon people who want to be reasonable and work out a solution. I love this town and most of the people in it, and I don’t want to create a bunch of enemies by simply stating my opinion. I’m ashamed, yes. But isn’t it sad that the opposition to the project has made, and probably many others like me, literally afraid to state our opinions openly? And yes, I’m a citizen of New Castle, and have been for many years, and I love this town.
4. To “Longtime Resident” again. I have not advocated for the developer. I’ve advocated for VIGILANT, good faith engagement, debate, and negotiation with the developer. The developer has expressed on several occasions a willingness to approach this this way over time, and we have not accepted this. Why? What are we afraid of? Are we not strong enough/smart enough to engage with them? We can always walk away if we reach an impasse. So why haven’t we accepted?
To Good Luck,
It was not a question of where to build a second middle school but whether to build one. The demographics at the time showed that it was unnecessary.
It has turned out that now we have no real use for it and we are carrying a $50 million debt. The current School Board rues that prior decision.
Anyone who is informed knows this fact. It has been the shame of the only School Board member who is still on the Board from the time of that grievous mistake, Janet Benton.
Your judgment about RD is obviously as informed as that about the Seven Bridges Middle School.
To the folks who advocate a “little” residential now, are you prepared to accept “all” residential in the future? That is what will happen in all likelihood. Can you imagine what that will be like for this town? It is naive to assume it won’t go that way. There are many, many factors indicating it will happen, including real estate law, which allows for zoning variances upon hardship which clearly SG has no problem claiming and pushing in the courts if they don’t get there way before the town board.
To “good Luck with the Assessment….I was one of those citizens opposed to the building of a new middle school years ago. Because of apathy in our community the vote just barely passed and we are now burdened forever with an expensive, underutilized, unnecessary middle school. We have twice the administrative staffs, teachers staffs, maintenance staffs etc then we need at a time that our taxes are sky high and our budgets are being squeezed. I blame apathy because at the time of the vote and then after the vote many residents never took the time to understand the middle school issues and when they finally found out they were opposed. Unfortunately many of those opposed never went out to cast their “NO” vote. Those against the building of that new middle school were correct then and certainly correct now. So thank you for making the comparison. This can not happen with Chapp Crossing.
@not so fast
your analogy is cute and self serving. if CC was rezoned to residential that would make it more in line with the surroundings properties. and as far as a homeowner petitioning to rezone their home to commercial because of some hardship, why would the process be any different from the current procedures? that would all be a part of the negotiating.
@Wrong then, wrong now
i bet there is a silent half that aren’t riled about about the prospects of CC going residential. perhaps YOU should take your own advice and listen to them.
it’s people like you why more people remain silent. even in a forum such as this you want to bully and cower. nice way to get what you want and to teach your children same.
I would like to point out that Summit Greenfields’s own spokesman stated during a recent tour for reporters of the recently emptied Reader’s Digest building that the town board could not approve the all commercial plan at this time because both SG proposals (i.e., the all commercial and the combined commerical and residential) are tied up in the pending environmental study. As the article described it, the spokesperson stated that “in fairness” to the board he had to acknowledge that is a fact. It was reported on the Journal News website as I recall some time in December. Maybe it was on this website too but I believe I read it first on LoHud.com. Now, they are trying to muddy the waters by making it seem as though the board is stalling on approving all commercial when the truth is the board is following well established procedures. And SG was the only one responsible for deciding to file the zoning application the way they did as a combined application which is the reason the all commercial cannot be determined yet.
I agree 100% with Mr. Swirsky, it was Summit Greenfield who asked the Town Board to free them from the 1 tenant resitrction & permit them to have up to 4 commercial tenants. They were granted what they requested. Now, they are attemting to turn that freedom granted TO THEM into a restriction being imposed on them. Sort of ironic. Unfortunately, for them, they can’t rewrite history.
And they know the violation argument is nonsense since the property is protected as a “pre-existing non-conforming use”. SG is just posturing again.
As far as the NIMBY argument, it’s getting old & certainly not applicable. I am seen as one of the more vocal opponents, and I live miles from Reader’s Digest. Certainly, the 900 people who signed the petition against residential rezoning @ Chappaqua Crossing don’t all live near the site.
Then again maybe “my backyard” includes all of New Castle. After all, the opposition has been accused of being recalcitrant & venomous, might as well add NIMBY to the list.
To “good luck with that reassessment thingy”... now who is being cute and self serving? You didnt at all address my question. The best that you came up with is that residential at Chapp Crossing “would make it more in line with surrounding properties”. By that logic any homes currently near Chapp Crossing are near a commercial property and therefore they should be able to rezone their homes to commercial because that is in line with surrounding property. I’m sure all the good people in Lawrence Farms East will be glad to hear that. That’s just foolish. As far as your statement that any homeowner could negotiate to rezone their residntial to commercial because that is part of the process, that too is foolish. We all know that the town board will not allow a home in a residential area to be rezoned so that the homeowner can run a business to seek relief from finacial hardship. If you would like to continue the debate I suggest you get real and not suggest that the homeowner can negotiate such a thing - cant - wont happen- period.
@Not so fast
i did not come into this forum to engage in circular sniping with you or anyone else. my opinion is my opinion so, move on.
and as to the decision to build 7bridges. i have no doubt, if the school was never built and those children were absorbed into bell, the discussion today would be about the board that dropped the ball. it’s all good and well for board members who didn’t make the decision to pretend they would have done things differently but so far, there is little evidence of good judgment, in abundant supply, by this board. the demographics at the time showed there was a need(despite opinions to the contrary) and perhaps it will be fully utilized again but i would argue if an overcrowded situation existed in the elementary and middle schools, that would drive families away from chappaqua.
I agree with Swirsky and Greenstein. This is all just dishonet posturing by SG. Just 2 months ago, Summit Greenfield’s lawyers told the Town Board at a public meeting that they could not lease any commercial space because it was all so outdated AND that they would not be able to afford to update any of the commercial space until they had built and sold ALL of the residential units they were seeking, and could not do it without those profits. The question then as it is now - then why did SG buy the property if the commercial space was so outdated? SG is a sophisticated experience real estate developer. They knew exactly what they were buying and they knew the risk - reward proposition. Their investment did not work out and now they want us to bail them out. They are acting as if we the people of New Castle somehow sold them outdated commercial space and we now have to make it right. They either made a bad investment or they planned on rezoning all along. Either way we have no obligation to do anything but perhaps ease some restrictions thus allowing commercial viability. Providing of course environmental issues are addressed. It is like the child killing his parents and then asking the judge for leniency because he is an orphan!
@not so fast
“You didnt at all address my question”
“Because if we rezone Chapp Crossing to residential to accommodate an owner who has lost money or made a bad investment there is nothing from stopping any resident from rezoning their home to commercial.”
“We all know that the town board will not allow a home in a residential area to be rezoned so that the homeowner can run a business to seek relief from finacial hardship.
did you answer your own burning question? talking out loud generally helps.
I have to clarify something: when I spoke about hardship being a potential basis for changing a zoning classification, I was not speaking of ordinary homeowners going from residential to commercial because they can’t sell their homes.That is not going to happen in this town.What I was speaking of was a commercial entity petitioning the courts for rezoning to residential, even over the objections of the municipality, on the basis that commercial zoning is claimed to be no longer viable and the property owner pleads such hardship as a basis for allowing rezoning to something that has market value, i.e, residential.The likelihood of success is substantially increased where the town has already accepted a certain amount of residential.
So, for those who think allowing a partial residential plan to be put in place will avoid litigation, I ask you to think again.The real big fight will be a few years down the road when SG says it cannot market the remaining property as commerical and asks for rezoning to all residential. Yes, the town would oppose that effort, but SG will run to the courts for relief.There is case law supporting the developer in such instances.If a judgment issues allowing all residential, then the developer can start remaking the property and the town is left with trying to control the damage (rather than stopping the damage from happening in the first place.)
Before your kids are out of school, before you have a chance to relocate, the word will be out and the prospect of many scores more condos on that land will help no one who values their homes, the quality of life here, and the school system.Watch what happens to the reputation of this town and its schools at that point.However, in its current position, having not allowed any residential on the property and armed with a long list of good faith reasons why it would be detrimental to the community, the town is much better suited to saying residential cannot be permitted at that site.
I agree 100% with “Think Again”. The Town Board must so no to residential re-zoning. Lift the 4 tenant restriction, that’s it. And get ready for the lawsuit - which is OK - we have the facts & law on our side.
To Good Luck:
There was and is no need for the Seven Bridges School. The School Board’s own demographics revealed, at the time, that it was a very brief and limited bubble and that there would be a decline in student population subsequently.
The current School Board members are left with that burden. The only current member who was on the Board at that time was Janet Benton and she was staunchly for building it.
You do have a right to your own opinion, what you do not have a right to is your own facts.
Please edit your statements to fit within the parameters of your knowledge.
Thank you.
I are still trying to comprehend what gives Summit Greenfield their sense of entitlement.
They are entitled to residential rezoning on a commercially zoned property because they are entitled to a return on their investment and a good return.
The assumption is that the Town of New Castle owes them a guarantee on their investment so that they not only suffer no loss but are assured of a definite and lucrative return. Why? Because they are Summit Greenfield.
So they buy a commercial property and then demand that it be rezoned residential. Nice work if you can get it!
Most astonishing of all is that are 2 people on this site whose comments suggest that they buy this strange notion.
I have not met them. In fact, I have not yet met a resident in this town who is for residential rezoning of the former RD site. Indeed, everyone, and that is everyone, that I have encountered is vehemently opposed to residential rezoning of the former RD property.
Furthermore, residents are so incensed with the posturing of SG (Rob Greenstein is so right—he has nailed it) that they are starting to question why SG should be granted any more commercial leeway.
They would prefer to see SG sell this site to a good-willed owner, one who would have respect for our community.
This is our home.
@Not so fast
You are correct with your assessment SG should be allowed to build residential. You use the same facts as I in that some of these residents say no to everything because they feel entitled.
You complain of poor cell phone service but don’t want cell towers in your town.I agree a small amount of residential would work for all parties.
To good luck with that reassessment thingy ...I am not sure what you are talking about and if in fact you are even reading and understanding these comments. I have NEVER said SG should be allowed to build residential. In fact I have been adamantly opposed to residential and the win - win referred to was in regards to our community easing some restrictions in order to allow SG to develop better commercial space.
I repeat - I NEVER suggested we change any of Chapp Crossing to residential. As stated by others, once we do that we open the door for SG to come back a few years later, claim the commercial end of things aren’t working out, and have them try to build more residential. To be clear my position is consistent with others that maintain that SG bought commercial, they are a sophisticated deep pocketed real estate company, and it should remain commercial.
SG claims that the commercial viability is hampered because it is “outdated”. Well they bought it - they knew what they were buying. Your position that they should be allowed to build residential because it is in line with surrounding community is absurd. By your logic, any homeowner near commercial (i.e. Lawrnece Farms East or “top of the Hill”) should be able to turn their residence into commercial because of proximity. Why waste all of our time with such silly argument.
what is going on here? this website is so poorly monitored that anyone can post using any screen name or multiple screen names. i did NOT post the above comment to “not so fast.”
“You are correct with your assessment SG should be allowed to build residential. You use the same facts as I in that some of these residents say no to everything because they feel entitled.
You complain of poor cell phone service but don’t want cell towers in your town.I agree a small amount of residential would work for all parties.”
I understand the idea of trying to have reasonable discussions to come up with some sort of compromise. It seems that in the spirit of compromise, a number of people think some residential would work. But I am very concerned about the idea that once you allow some residential, the risk for all residential increases. To me, that is a terrible prospect and if it is true, I don’t think small residential is the way to go. I would like to be educated as to what those favoring small residential think about the possibility of future additional development of the property to be all residential.
clittle,
In an attempt to understand, I went back to your original post. After a bunch of stuff about mob mentality, obstruction, etc, you put forth the following:
“Congratulations obstinate opponents of the project, you “win”. Us regular citizens who support reason and vigilant negotiation? Well, we all lose.”
What the mob does not get is where is the “reason” that you reference. What has most people in the town so energized is that while the faults are obvious, all we hear are empty arguments in favor of the project, and I don’t see anything further from you. In terms of “vigilant negotiation”, why? It’s as if someone stopped me on the street, ask me for $100, and then is indignant when I am unwilling to negotiate a lower amount. This is how many in the town view these negotiations. We all just want to say no because there is no apparent reason not to.
Starting to wonder why should we grant SG anything. Because they have given this town and our Town Board such a hard time, they deserve no relief, not even commercial.
We are getting so fed up with the trouble and disruption that they have brought to our peaceful community that our hearts are hardening. If they go under then they go under. Someone else will take over the property.
They are certainly not a desirable member of this community which they have not only tried to destroy by which they have flagrantly insulted.
This last letter is beyond the pale and the last straw that proverbially broke the camel’s back. Each and every resident of this community has been insulted.
SG’s representatives surely know how to alienate a community.
Give them nothing. They say they are going to sue anyway, so why give them any commercial zoning breaks?
To CLittle,
Why is this so complicated for you? Do you really believe that you and/or the town will benefit in any way whatsoever if Chappaqua Crossing is rezoned to residential? I mean, really? Do you?
You would have to be lobotomized to believe their plan is anything other than a pathetic attempt to take money from the people of New Castle’s pockets and put it into theirs. The arguments have been laid out thoughtfully and accurately at town meetings and in the pages of this website—there is no reason to reiterate them here.
I don’t know what your motives are, CLittle, but I can tell you this: NO ONE will support SG’s asinine proposals. The fact that you have the audacity to accuse the people of this town of being unreasonable is pathetic.
Dear “Some Additional Thoughts”,
Yes, I have been lobotomized. I am stupid and irrational. How did an idiot like me ever afford a house in this town? Well, I admit I did buy at a low point many years ago, but even with that, how do I afford $22,500 in taxes every year? Must be an inheritance and a good lawyer, eh?
My motives are for sure pernicious. I despise this town and, though I have 2 children in the school system and have lived her for more than 20 years, I want the schools to be overcrowded and our student-teacher ratio to deteriorate. My ultimate goal, should I be able to achieve it, is to destroy housing values here, particularly mine because it is my single biggest financial asset, and dropping it’s value 20-25% would be so fulfilling to me.
I must especially apologize for saying that some (and I always say “some”, not “all”) in our town are being unreasonable. I mean, one only need read your post above to see how level-headed, unemotional, and fact based people like you are. You must be an airline pilot, steady as you are. Why I would consider someone like you unreasonable escapes me now that I think about it. Thank you for helping me see the light.
The courts in NY have held that where a property and the surrounding neighborhood is materially unchanged from when the property was bought, the community does not have an obligation to grant a variance just so that the property may be turned into something more marketable for the owner.
In other words, if all SG has is the complaint that they made a bad deal and now realize they have a difficult to market commercial property, our community does not “owe” them anything. Yet, for a variety of reasons, including that I hope the property will be resurrected in a way that benefits the community, I fall on the side of adjusting the commercial zoning to allow for a greater number of tenants provided steps are taken to address potential problems with traffic and the like. Absolutely no residential, however.
I guess CLittle and I are not the only lobotomized zombies walking around New Castle. This is the second letter to the editor from Ms. Rosafort that has been published in the Journal News suggesting that the voices of Town of New Castle residents who do not reside in the CCSD are being dismissed out of hand. Perhaps she works for Summit Greenfield too (just like me and CLittle).
While I don’t believe that the CCSD should foot the bill for defending the Town against any lawsuits regarding Chappaqua Crossing, it would be nice if all of the prestigious litigators who have volunteered to represent the Town for free would show up at the next Town Board meeting and publicly commit to doing so. If my Town taxes are going to go up due to reduced assessments at Chappaqua Crossing, it would be nice to not have to pay even more to cover legal fees.
Forgot the link: http://www.lohud.com/article/20110106/OPINION/101060370/Some-taxpayer-views-go-unheard
There is no reason to assume the assessments will stay low if the property remains commercial. Assuming the commercial zoning restrictions are amended and SG then uses its full efforts to market the property, they may well find new tenants to fill the vacancies at the property. That would result in an upward reassessment. Had Summit Greenfield not filed the request for a commercial zoning variance coupled with the combined commercial/residential, they almost certainly would have had their answer long ago.
And logically speaking, if SG was feeling relatively confident of a positive outcome for adding residential to the property, it was not going to be marketing the existing commercial areas as fully as it would if it knew the property would remain wholly commercial. Judging from the vehemence of their letters in December claiming the town had pulled a “switcheroo,” I feel comfortable concluding that they thought things were going pretty well for the residential plan up until then. I am not in a position to know precisely why they would conclude that since every issue they depicted as “new” had been subject to discussion for long prior, but obviously they felt things were going their way until last month.
I am really trying to get people to consider the very real prospect that the town will before long not be able to control residential development at that site once some condos are allowed. But the posts fall into two basic camps: either joining in that concern or simply ignoring it. By that I mean, those who support partial residential are silent on how they feel about all residential, focusing instead on how to solve the immediate conflict.
If zoning variances were written in stone never to be altered by some future application, some residential might indeed be fine. But that is not the reality of the situation. An entity like SG, under the circumstances of the Reader’s Digest site, can keep going back for a further variance as long as it has some reasonable arguments. Allowing some residential gives them the very arguments they will need to chip away at the commercial aspects of the property until it is all residential.
NY Town Law 267-b(3) controls the situation and it permits variances under certain circumstances. That law mandates that a zoning board apply a balancing test in reviewing an area variance application which is what SG would be seeking if it wanted to eliminate or reduce the commercial buildings at the site and add condos because the commercial aspect was not financially viable.
That law states that no variance may be granted without a showing by the applicant that applicable zoning has caused it unnecessary hardship. To prove “unnecessary hardship,” the applicant must prove a number of things, including that that “the requested use variance, if granted, will not alter the essential character of the neighborhood.” Right now, the neighborhood is well established single family homes, a commercial property and a high school. There are no existing condos in that neighborhood.
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Accordingly, the town would be in a strong position to say that adding any condos would in fact alter the essential character of the long existing neighborhood and based on case law, a court is likely to conclude that the board was reasonable in making that determination.
The town would also be able to effectively argue another factor of the statutory balancing test, which is the situation is of SG’s own making: the condition of the property is basically the same as at purchase and SG knew what it was getting into and it is not for the town to help bail it out particularly if there is harm to the community in the form of environmental or lifestyle issues.
However, if several hundred condo units were to be accepted by the zoning board, such arguments starts to slip away and the balancing test tips more and more in favor of the variance applicant. For example, if the town allows 199 condos to be put in place, and at a later time, SG applies to construct an additional 51 units (which would be in line with SG’s March 2010 proposal), it is much harder to argue that the essential character of the neighborhood is being altered—in short, since the town already found a significant number of condo units to be an acceptable addition so that the neighborhood is now a mix of structures, how can the addition of just 25% more condo units alter its essential nature? It is also much harder to argue harm to the community through traffic and septic issues and the like if the bulk of the work has already been deemed not harmful. And it simply can no longer be said that SG is in a bad situation entirely of its own making, because that was a snapshot in time that the town allowed SG to move away from as the site was materially changed.
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SG has already laid out that it really wants a lot more units (the 2005 proposal was 348 units but if all existing buildings are demolished, imagine how many can be built in total). It is reasonable to expect that the goal for a bigger development remains, as SG is in the business of making money for its shareholders and that is the way to do it evidently.
Since they could not get outright approval for the whole project, they will have to do the next best thing, go step by step. With each step the essential character of the neighborhood will be solidified as a mix of single family homes and condos. It will get to a point where SG asks, why not take down the commercial buildings in their entirety? After all, by that point, the neighborhood has become so overwhelming residential that the commercial side is truly not viable. And there you have it, a major condo development, with all the downsides that go with it.
Please consider where this will all end. It is not just 2011 we are talking about. Give any developer a few years and they will be doing exactly what I have set forth.
Not so fast… and clittle
I still agree with you both a small amount of residential would be fine. I spoke with the Nancy P. of SG at the site and she assured me we would all love the development once it is complete. We have to build it first then we can see what’s in it for us all. The three of us seem the most sensible here.
Some additional thoughts from a resident is with us too. A small amount of residential will benefit the town just as the gazebo brought joy to all in town. Thanks guys.
To Good Luck…
I’m sure “Nancy P. of SG,” whoever she is, would LOVE us “to build it first so we can see what’s in it for us all” —and a “small amount of residential would be fine”—a fine way to get a WHOLE LOT OF RESIDENTIAL TO FOLLOW. No thanks.
To: By good luck with that reassessment thingy: a small amount of residential will benefit the town as the gazebo brought joy to all in town?????? huh??? how many of us care about the gazebo except to say how could it have cost so much and who wanted it anyhow?? And to say we would all love the development once it is complete? No thanks.
Leslie
I fully understand the desire to avoid litigation. But in this case, people have to accept that a lawsuit from someone is reasonably likely to happen. This is the unfortunate reality of the situation, but it is indeed the reality. Here is why I say that. For those patient enough to read my prior posts, even if SG gets what it wants right now, there is a great likelihood of threatened litigation down the road from there as they want to expand the residential.
That future fight, which I feel the town would lose, would make anything in the near future look easy. Also, even if the current residential plan were to be approved or if the commercial restrictions were lifted without completing the environmental impact study (which is what SG is insisting on in its latest letter), a lawsuit may well come from a town resident. In the case of approval, it could be a homeowner, or a group of homeowners, who resides in the “zone of interest” which is basically property abutting the Reader’s Digest. There are lots of cases from residents who sue to overturn variances approvals. In the case of immediately lifting the commercial restrictions without completing the environmental study, it could be just about any land owner in town (see below for an explanation).
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My best advice is for the town to remain firm and not approve the residential plan because:(1) That means no lawsuit from residents over the residential or commercial without proper review; and (2) Despite its public posturing, SG understands that the facts and the law are against them in a big way and seeking to add residential over town opposition is not an easy case to win.
Maybe cooler heads will prevail on their part. They are really off base in claiming the town has been unreasonable in not lifting the commercial restrictions and our town board is correct that, under the law, they simply have to take a “hard look” at the environmental impact of the proposed land use.
For example, the Town of East Hampton adopted a law in 2007 impacting local land use without taking the mandated “hard look” under the State Environmental Quality Review Act (SEQRA). The owner of three undeveloped parcels in the town sued to void that law. In a November 23, 2010 decision, the Appellate Division found that the law amending certain land use regulations was void as it was adopted without taking the required “hard look” under the State environmental Quality Review Act SEQRA. See Matter of Prand Corp v. Town Board of the Town of East Hampton.
Thus, there is no getting around the requirement of taking a “hard look” at the environmental consequences and it is just the way it is. A couple side points, the Town of East Hampton lost at trial and lost on appeal and the case took 3 years or more to wind its way through the courts. Really that town should have known better and evidently our town board is being better advised. If SG wants to go to court over this particular issue, let them. The town would have to be a party but overall the end result might be okay. If the court orders the lifting of the restrictions (which is doubtful but maybe SG can succeed), that is probably fine because then our board is not the responsible party.
Perhaps the Chappaqua Library can offer a short adult education course on the topic of detecting sarcasm in online postings (or maybe “good luck” can just start using the winky emoticon 
when discussing the lovely new gazebo, source of joy to all, and a real bargain at only $250K).
It seems to me that the simplest solution to SG wanting the commercial change is to amend their own FEIS submission to eliminate the residential portion. IF they do that they can get the commercial changed in short order. Then, they can file another petition for residential. I am not a lawyer, but I believe that there would be a much shortened SEQRA process as all the studies have all ready been concluded for this application.
Btw, if I were West Ender I would feel the same way he does. Build away. My school taxes would be unaffected and at worst my town taxes would stay the same but would likely go lower. But I am not West Ender, I am a Townie who is part of the CCSD so he must appreciate my concern. We are all speaking our own best interests here. While I do not believe it is the Town Board’s obligation to simply poll the residents as to what is best, nor do I think a small minority such as west enders should have a veto simply because it does not benefit them, I do think that the fiduciary obligation of the TB is to protect the interests of the residents vis a vis the interests of the developer. Whose interests do they represent? Not SG.
After reading all these comments/debate, it’s no wonder that Chappaqua has remained a stagnant, over taxed community. Any developer or businessperson wanting to grow and/or improve their business here would be crazy to tackle the town politics. Everything is done at a whim of the Town Board and depends on the influence residents can exert on the Town Board.
Politics as usual. Nothing gets done (or it gets done incorrectly). Nobody benefits. Taxes go up. Life goes on.
It’s obvious that the residents living behind this property are pulling the Town Board’s strings. Let them pay for this mess.
It is VERY ironic that “the attorney goes on to say that because the property now violates existing zoning requirements, our client advises that prospective tenants have refused to consider pursuing occupancy at Chappaqua Crossing, and we expect they will continue to do so. We are also concerned that the existing tenants at Chappaqua Crossing may become concerned about the viability of their continued tenancies.”
Putting aside the fact that the violation argument is nonsense since the property is protected as a “pre-existing non-conforming use”, could it be that both prospective and existing commercial tenants are concerned because Summit Greenfield has shown absolutely little interest in the commercial use and continues to push for dense residential development that will compete traffic-wise and parking-wise with the office space?
That would certainly be a valid concern.
I agree with Westender Too. The end result here will not be pretty for the Town of New Castle; anyone that thinks otherwise has little land use experience. It pains me to say this, but it is time to give the Republicans a chance to run the Town.
