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Developer’s litigator says time’s up, Whole Foods will walk, SG will sue
With 100 comments since publication
Saturday, November 1, 2014
by Christine Yeres
In last Tuesday’s public hearing on Chappaqua Crossing, a Whole Foods representative testified that a total of 120,000 square feet of retail—40,000 of which would be Whole Foods’ part—is the number its corporate office likes. And a new memo on traffic from the Summit Greenfield says that to reduce the 120,000 square feet would violate the terms of its conditional lease with Whole Foods. Yet Town Board members seemed still to be trying to find a way to work the amount-of-retail-square-footage and volume-of-traffic levers to find a formula that all parties can live with. And all three parties—Town Board, Summit Greenfield and Whole Foods—want the matter decided by end-of-year.
After public comments, Summit Greenfield’s counsel introduced the developer’s lead Fried Frank litigator, who warned that not only would Whole Foods walk, but that the lawsuits against the town—suspended by a settlement in 2012—would resume if the retail zoning is not approved in what remains of 2014.
Town Board member Lisa Katz bristled at what she interpreted as the threat of a lawsuit by Summit Greenfield’s litigation attorney and pressed him to discover from his client by what amount the 120,000 square foot figure for retail originally proposed in the draft zoning—and still subject to change by the Town Board—could be reduced to reach a compromise.
According to Town Board counsel Nick Ward-Willis, “if the Town Board were to consider this project,” after the environmental analysis it would first amend the Town Development Plan to allow retail, then adopt a “retail local law” adding “retail” to the list of permitted uses in the zone, then approve the “preliminary development concept plan” or PDCP (—the Planning Board has asked that the Town Board officially share its review of the PDCP with the Planning Board—) and, lastly, the Planning Board would hold public hearings on approval of the final site plan. The zoning amendment that would permit retail use does just that—make retail a permitted use on the property. How much retail square footage and where buildings would be located, and their number and size are decided in the PDCP stage.
Although at the end of the public hearing on Tuesday the Town Board closed public comment on the amendments, the remaining hearing subjects (minor alterations to the approved residential portion of the site were approved) are continued until November 18. Between now and then the Board expects to make changes to the drafts of each and attempt to make its decision on whether to permit retail at Chappaqua Crossing by year’s end.
An account of the meeting follows; the 3-hour and 47-minute video is embedded below it. Early on in the video is AKRF’s presentation of its “competitive effects” report.
AKRF Report on Competitive Effects on the Hamlet
Tuesday’s public hearing on a zoning change for Chappaqua Crossing began with a presentation by the firm that analyzed “the competitive effects” of retail at Chappaqua Crossing on the downtown hamlet, maintaining that the two retail centers can coexist.
Whole Foods is concerned about delays
Next, Mark Mobley, Whole Foods’ northeast region executive construction coordinator, told Board members that the company has “looked for years for a location up here.”
“Four years ago,” Mobley continued, “when Felix [Charney of Summit Greenfield] came to us we looked at the old Reader’s Digest building and determined it wouldn’t work for us. A main shopping center is better for us.” Whole Foods’ ” real estate board required that we be out in the shopping center in a critical mass of retail,” said Mobley, and the company “would like to be part of the community, bringing a healthy lifestyle” and working “with the schools and hospital.”
Whole Foods was “concerned with all the delays,” said Mobley. “We’d like to get it done as soon as possible.” If approval isn’t forthcoming by the end of the year, said Mobley, “we will consider moving on.”
Whole Foods, he said, “likes the location and the mix of tenants, which is very successful at Kings Crossing [Fairfield, CT].”
“We like the size of this center [at Chappaqua Crossing] because there’s not a lot of retail around it.”
“What’s the minimum [you feel you need]?” asked Lisa Katz.
“It’s what the real estate committee approves,” said Mobley.
“And you said there was a December 31 deadline. After that date Whole Foods will no longer be interested?” asked Katz.
Mobley responded that Whole Foods would “consider moving on” after December 31.
Comparison between intersection at Rt. 128 and 117 with Roaring Brook Road and 117
Superintendent Rob Greenstein had asked traffic experts to analyze traffic conditions at Rt. 128 and 117, “because it has turning lanes both north and south, surrounded by commercial” and seemed to work well. The results: Roaring Brook Road and Rt. 117 intersection “would be similar.”
TB member Adam Brodsky asks Whole Foods rep for rationale for 120,000 square feet
“Large format versus small format,” Town Board member Adam Brodsky asked, “—take the hamlet out of the equation for the moment—in your experience, what’s the best recipe to make the shopping center a success?”
“Each one is different,” said Mobley. “When you’re in another area with a lot of retail you’re feeding off each other shopping centers. We originally wanted more retail. This is probably about the smallest it can be.”
“My question,” said Brodsky, ” is if there’s 80,000 or 60,000 square feet [in addition to the 40,000 square foot Whole Foods and 25,000 square foot gym] what is Whole Foods’ preference? For six 10,000 square foot [stores]?”
“Probably a mix,” said Mobley. “A lot of retail in centers we’re in is 1,500 to 5,000 square feet and it works well… There are some up to 10,000 square feet. There’s no set formula to it.”
What makes Whole Foods think it can be successful, asked Brodsky, on a property “with no frontage on a road”?
“We’re not your typical grocery store. We do a lot of demographic research,” said Mobley. “In this area we’ve been requested heavily for years by people that want us. We have a good following. We’re a totally different market than ShopRite or Stop-and-Shop. People drive 30 minutes for a Whole Foods. This is a part of Westchester we want to be in.”
“In my day job I do similar things to what you do,” said Brodsky. “When we look at projects we have a rationale. Obviously, you might like a million square feet. How did you get to “120… it’s got to be 120”—Why not 110,00 or 119,000? Why 120,000?”
“That’s all taken care of in Austin [Texas] in the real estate committee,” said Mobley. “I just build them and design them.”
“That doesn’t answer our question,” said Katz.
“What does the additional 80,000 do that the 60,000 [in addition to the 40,000 Whole Foods] wouldn’t do?” asked Brodsky.
“The more retail, the more people you bring in,” said Mobley. “It plays well between the small shops and us. If we were up there by ourselves it wouldn’t be good. There’s a synergy going on from other retailers.”
“Yes,” said Brodsky, “that’s why it’s called an ‘anchor’ and ‘symbiotic.’ That’s crystal clear. What’s the magic number that gets you the synergy but at the same time reduces the impact on the community? Everything in politics is about compromise. That’s where I’m coming from.”
Effects on existing retail, character of the town
“Part of this debate has to do with our downtown,” said Supervisor Rob Greenstein. “A lot of our downtown merchants are struggling. Have you opened a Whole Foods where people are concerned about their downtown?” How do we make it a win-win? he asked.
Mobley’s example was the Whole Foods in Manhattan, at Union Square. The green market that operates there was at first fearful that the presence of Whole Foods would harm it. But the opposite happened, Mobley said. The green market “had actually grown.” He cited Darien, CT— with Whole Foods on the outskirts of the downtown—as another “win-win situation.”
“Northern Westchester is more bucolic than Manhattan and Yonkers,” said Katz. “We’re asking these questions because Whole Foods wants to come into the middle of a residential neighborhood. It’s not the same as putting it in a major downtown center. This is going to change the whole character of the neighborhood. So this is not a small ask. We want to know how we can make it a win-win for everybody. Just to say ‘120,000 square feet’—we’re trying to figure out whether this can fit into the character of our town.”
“Have you had experience,” Greenstein asked Mobley, “building a Whole Foods in a residential neighborhood?”
“We have on going in in New Jersey—a small shopping center [in Closter, NJ] that’s being renovated and added on to—that’s going into [a residential neighborhood]. Probably about 130,000 or 140,000 square feet. It’s pretty much in a residential neighborhood. But there’s no other retail in the neighborhood and, like AKRF said, people are driving off to other various [locations] in Bergen County, spending their dollars elsewhere. We would not come into this area if we didn’t have a critical mass around us in order to bring other people into the area to shop. It just doesn’t work economically. ”
“I think what’s going to happen,” said Mobley, “is people who come here are also going to shop downtown, because they’re in the neighborhood ‘cause there’s no place else to shop in this part of the world, and it’s going to be a win-win situation for both [retail] areas.”
Simpson asked how often trucks, which are unable to access the site from the Saw Mill Parkway, entering from Bedford Road across from Annandale Road will make deliveries to retail at Chappaqua Crossing. A traffic light at the Bedford Road entrance would likely not be approved, the Board has learned, since Annandale Road is already so close to a traffic signal at Roaring Brook Road.
Mobley explained that “not more than two 18-wheelers per day,” would enter the site, “perhaps three at holiday times,” for which Whole Foods manages the logistics. UPS and FedEx are more common carriers for other retailers.
Felix Charney of Summit Greenfield responded, “this is hypothetical,” since Summit Greenfield doesn’t have leases with stores other than Whole Foods’ conditional lease—“We were originally invited to this process and were asked to get Whole Foods interested,” he reminded Board members—“but the smaller the store, the smaller the truck. I would suspect the only 18-wheelers would be Whole Foods.” He added,
“I’ve argued all along that there’s a business side to this that the Board hasn’t been looking at,” said Gladstone. “What traffic, rents, dollars per square foot are required, he asked, for the developer to be successful?
“And was the Jersey center put into a residential neighborhood with $2 million homes?” asked Gladstone.
“Someone could argue too,” said Greenstein, “that the retail is being put next to 600,000 square feet of office, across from a high school, next to the Saw Mill Parkway, next to Route 117, which is a major state road ....”
“But we didn’t calculate when talking about tax revenues,” said Gladstone, “what the tax mitigations for all the homeowners will be. Where’s the offset? We’ve only looked at one side.”
“In this region [—NY, CT, NJ—] we have not closed any stores due to being unsuccessful,” said Mobley.
Reduction in size of retail
Lambert continued on the trail of the traffic numbers, asking Town Board members to confirm that they had seen the numbers both they and the Planning Board had asked Summit Greenfield’s traffic experts to supply: Traffic for Chappaqua Crossing if the retail space were reduced by 25% and by 50%. “You’ve seen those numbers, right?” she asked Board members. The Board’s counsel answered for them, referring Lambert to documents published on the Town website. One of the documents is a response from Summit Greenfield’s counsel, a letter of September 18, 2014 stating that such a reduction “will not improve the level-of-service at those intersections,” and adding further that, “such reductions in retail space would violate the terms of the lease” between the developer and “its conditional tenant, Whole Foods.”
More traffic because of Whole Foods “regional draw”?
“By Whole Foods’ admission,” said Brodsky, “this is a regional center with a regional draw.
A center drawing from the larger regional area. On that basis the question is if you’re drawing from a larger region, a more affluent customer base, will more traffic be generated?”
“The Darien, CT store draws less traffic than we had predicted,” said Summit Greenfield’s traffic expert, John Collins. The same was true for the A&P and Target in Mt. Kisco, he said. “We likely overestimated the traffic numbers.”
“What you have acknowledged to the Board is that this center will generate tremendous traffic to this area,” said Brodsky. “Otherwise it won’t be successful. And the roadway [mitigations] will make it better, but not perfect.”
“It does generate traffic,” said Collins. “It would be crazy to say it doesn’t. That traffic is impactful on the roadways, there are intersections identified as needing improvement. Those improvements have been done [changes have been suggested to DOT] to the maximum extent possible. That that will improve the operation and also improve the existing operation, especially the intersection of 117 and Roaring Brook Road. I never said there would be no traffic, because if you had no traffic you’d have no [shopping] center.”
Earlier in the evening, Jason Chapin had elicited information from Summit Greenfield’s traffic consultant John Collins that Collins has stated before: That in the cases of both Whole Foods in Darien, CT and the A&P / Target shopping center in Mt. Kisco, Collins’ projected traffic numbers had, in the end, come in lower than predicted.
In public comment, Roger Klepper addressed the over-estimates by Collins. “Before we make any inferences about whether the traffic will be more or less than what they’re projecting,” said Klepper, “there isn’t any explanation. So unless you can understand the specific of those projects, merely presenting the fact that the traffic was less-than-expected is meaningless. You’d have to be able to say ‘OK, those things that made it less—would we expect them to be applicable to our project?’”
“The traffic analysis,” continued Klepper, left him with “something unsatisfactory.” He described for Board members what should have been a routine Saturday trip for him through town—but it was during Community Day, when he realized what “traffic” means “when it becomes something you have to plan around.”
Klepper noted, he said, that the traffic comparisons were based on fully utilized office space. In looking over the traffic data, “what jumped out to me was ‘weekday peak a.m. highway hour”—which gives 859 as the number of vehicles. That’s roughly the level of traffic we’re talking about at all times the stores are open. That’s something we need to consider. Once the genie’s out of the bottle, it’s out… When you think about questions of whether 120,000 square feet is the right amount, this is what’s at stake. I think it’s a quality of life thing for our town. It would be great to have Whole Foods there, but we need to make sure what it means in terms of the town.”
To this comment, Greenstein suggested Klepper consider a comparison with the intersection at 117 and 128 [at Lexington Avenue]
“That’s a much larger intersection,” said Katz.
Greenstein said he had asked the traffic experts about the 117 and 128 intersection and they confirmed, he said, that turning lanes and traffic volume there are comparable to the intersection of Route 117 and Roaring Brook Road.
“No one disputes that there’s going to be traffic,” said Brodsky. “One of the decisions we’re going to have to make as a Board is whether the benefit of this development outweighs the impacts to the community.”
New to town, Wang’s house is located at the high school entrance. Since the developer owns all the property along the north side of Roaring Brook Road, he suggested, can the developer use his own property as access into the shopping center?
Tobin asked whether alterations to Route 117 would require the taking of private property? Either the applicant owns the property needed or the property needed for the alterations is in the right-of-way, said the Board’s counsel, Nick Ward-Willis. The cost of the alterations would be paid for by the applicant. The developer would have to have a work permit from the Department of Transportation for such work before any building permit is issued.
“The applicant cannot propose a mitigation [for traffic] that is a solution,” said Lewis. “I do see impacts that are not yet being addressed. AKRF asked whether Chappaqua Crossing, as proposed, would constitute a third hamlet. Their answer was No. Why is that question important? Who cares whether it’s called hamlet? We seem to want more intense development [for the Chappaqua Crossing property]. Even I can see why my wonderful residential neighborhood may have lived its useful life. And we just have to accept the fact that we don’t live here anymore. If you decide you want development in this neighborhood, it’s your decision. AKRF seemed to say that [retail at] Chappaqua Crossing would not hurt business in the Chappaqua hamlet. I think the argument was that there is no anchor store in the hamlet that would suffer from competition; but in the same AKRF report said that every commercial center profits from an anchor store.”
“I thought AKRF was trying to say that because there’s no anchor store in Chappaqua,” said Greenstein, “the risk to downtown Chappaqua is reduced.”
“Sounds to me that you’re creating a competitive situation,” said Lewis, “that will make it harder to develop the downtown.”
“AKRF also said that regardless of what happens at Chappaqua Crossing, there are things that have to be done for downtown Chappaqua,” noted Greenstein. “I would hope that this may motivate some people who for whatever reason have been reluctant to do in downtown Chappaqua the things we paid hundreds of thousands of dollars to consultants to hear. This will hopefully be the motivation we need to do it.”
“The Planning Board has made a pitch to be included in the PDCP [preliminary development concept plan] approval process,” said Lewis. “I think they would contribute a lot and that that’s the kind of scrutiny that’s required. Their written comments have been great—especially their ‘traditional neighborhood design’ comments, but I’m a little sad they haven’t applied those principles to the broader neighborhood. I wonder if there’s some way we can expand this conversation—without necessarily further burdening the applicant—to develop the area, but utilize some of the principles the Planning Board talks about.”
Greenstein assured Lewis that although some people would inevitably be affected more than others by the proposed retail, the Board would attempt to mitigate those effects. Chapin told Lewis to make his suggestions known to Board members so that they can be considered in the PDCP stage of approval.
Katz suggested that rather than consider rezoning his neighborhood for commercial development Lewis might concentrate instead on procuring more of a buffer for the homes along Roaring Brook Road.
“Send the Board your ideas and we’ll try to integrate them,” Brodsky told Lewis. “This is the moment.”
Weitz asked whether, if the retail project is conditioned on approval of the roadway alterations by the Department of Transportation, the retail zoning would remain. Ward-Willis explained that “the town needs to change the zoning to permit retail, the retail use would then be approved through the PDCP [preliminary development concept plan], the site plan approval that follows requires approval from DOT before any building permit is issued.” If the proposed project is not approved, the retail zoning would remain on the books perhaps for another retail development one day—a smaller retail development that wouldn’t require the roadway changes.
Weitz urged Board members to wait for Master Plan outreach before making any decision on the retail zoning. She read from a June 13, 2013 letter written by Greenstein before his election, in which he asked, “Why is the town undertaking the review and updating of its Master Plan if they’re not going to use it as they consider a project that could forever change the character of New Castle?” and advocated for a moratorium. She reminded Greenstein that the Findings of 2013 were a tool to help decide whether to approve the retail proposal, not a commitment to do so.
Tobin suggested that the Board require financial figures from Whole Foods’ other stores to calculate what its traffic volumes would be for Whole Foods at Chappaqua Crossing.
Stevens, “a previous resident of Chappaqua” and now a nanny for three years here, was critical of the Board’s no-time-limits on comments and found that many people made the same negative statements over and over. She read from a device, “It leaves the people who are all for a Whole Foods—like me and the family I work for—fearful to step forward. The family I work for are all for Whole Foods along with other families they’re friends with in Chappaqua and families I’ve encountered through playdates. But they’re afraid that the people from Cowdin Lane or Christine of the Daily Voice are going to ridicule or stone them. I hope when you make your decision you keep that in mind, that Cowdin Lane is but one street out of many in Chappaqua and I think if you went door-to-door or sent out a letter you’d be surprised at the positive response you get.”
Werbel told Board members that the claim by residents that the proposed shopping center is “a regional center” is inaccurate. And their complaint that it would be “smack-dab in the middle of a residential neighborhood” is inconsistent with the location of the so-called neighborhood—“bound by a railroad track and a school campus and a major road. Now if they were going to build it at the Mt. Kisco Country Club, that’s smack-dab in the middle of a residential neighborhood.”
He told Board members that he believed that the Chappaqua Crossing proposal had been “vetted up the wazoo” and that calls for master planning were “a pretext to delay this forever.”
“We absolutely need [retail at Chappaqua Crossing],” said Werbel. “The downtown is dead. Now it’s your job to bring [the downtown] up. And I’m sure you are. On a personal level, I go to the Whole Foods in White Plains, but I don’t want to go to White Plains anymore. I go to the one in Portchester. It’s fabulous. I can’t believe it. Anyone who doesn’t go there, you’re making a mistake. I live near Armonk. I never shop in Chappaqua. Never. I go to Decicco’s, I go everywhere. The Armonk model is a success. Take advantage of it. Make the downtown beautiful.”
“So here it is,” said Napoli. “We have a business plan for something and [imagine] it’s time to do the executive summary. What I’m asking you [Board members to do] is present for us an executive summary in your own words of what the benefit to the town is after all this work has been done. It’s a business plan and it’s going to tell us what the benefits are. [That executive summary contains] sort of the reason to change the zoning and it should show up as some kind of statement. Before this gets done I hope you put it in a statement saying, ‘This is the benefit to the town….’”
Summit Greenfield’s counsel John Marwell reminded Board members that to view traffic increases in terms of percentages is misleading, that the property is zoned for commercial activity and that two previous Boards had found that “the inconvenience of additional traffic is outweighed by the benefits of the proposed project.”
Marwell introduced Howard Stahl of Fried Frank, Summit Greenfield’s litigation counsel, to outline where the applicant “would like to see the project” by the end of this year.
Stahl began by noting that many property owners had expressed their views of the retail proposal and how it may affect them, “as they have every right to do.” But, he continued, “I want to talk to you about another property owner who pays more taxes than any other property owner in Chappaqua, who is now in the tenth year of trying to obtain some zoning for this site. They’ve gone through four different boards, three or four different supervisors—every one of which has had a different proposal for Summit Greenfield.”
“You have an opportunity to settle this,” Stahl continued. “And you’re right, Supervisor, that everyone won’t be satisfied. And a perfect compromise is where everyone is somewhat dissatisfied, some more than others. The last group you need to pay money to is me—and him [pointing to the Town Board’s counsel]—and other people like us who will litigate this in the courts.” Stahl told Board members of a case with “almost the identical fact-pattern as the last ten years in Chappaqua”—Sherman versus the Town of Chester—in which a developer had spent millions as the town “kept moving the goal posts”—that been settled in May in favor of the developer.
Stahl reminded Board members that, as supervisor in 2012, Susan Carpenter had herself proposed that Summit Greenfield consider retail use at Chappaqua Crossing. “When the zoning was finally approved for the limited number of residential units,” which the applicant believed was economically infeasible, Summit Greenfield’s litigation began. And Carpenter, he said, had decided to settle the litigation by suggesting the retail use—and not “just a food store,” said Stahl, “but a Whole Foods… because every community wants a Whole Foods. It’s sort of iconic. This is the only community I’ve heard of where there’s resistance to having a Whole Foods.”
“I can’t believe there is a single topic that you all haven’t looked at,” said Stahl. “It’s time now for a legal reason to make a decision. You have to decide what you want to do. I can’t force you to do the sensible thing—which is to settle this in a way your predecessors found it ought to be settled, with this [property] being used for retail purposes. For a food store. You don’t have a food store.”
Stahl told Board members that he had looked at 6:30 p.m. in downtown Chappaqua for dinner before the hearing. “It was pathetic. I found a Dunkin Donuts we were going to eat at. It had three stools. And two people were on two of them. Next door was a pizza place. There was nothing else there. The array of stores next to it—the dry cleaner and the other stores? They were all built in the 50s or something. They all looked like little bowling alleys. I’ve heard all of these studies about ‘we need to study the impact of this retail on the downtown.’ Anything would help downtown. And this [retail at Chappaqua Crossing] would certainly help the downtown.”
Returning to the settlement during Carpenter’s term as Supervisor, Stahl said that she had “asked us to stop” the pending lawsuits. The resulting settlement agreement at the end of 2012, he said, stated that if the zoning could be done within the next year, where retail would be permitted and a food store would come in—and it had to be Whole Foods—that would be the resolution of the litigation and it wouldn’t be refiled.
[Editor’s Note: In the settlement, the lawsuits were suspended, and the town agreed to review the possibility of retail zoning for a portion of the site within a year’s time—not grant it within a year’s time. If the Board decided not to rezone, Summit Greenfield would have the option of reopening the lawsuits. As part of the settlement Summit Greenfield also paid hundreds of thousands of dollars in fees it owed the town. Carpenter’s pressing for Whole Foods was a part of a strategy of “adaptive reuse”—to use existing office space to house the retail. A Whole Foods, the thinking went, would have draw enough to be placed in a location without frontage to the street and yet have customers find it. Since that proposal, 120,000 square feet of retail in new construction has been proposed by Summit Greenfield.]
“And then you were elected,” said Stahl, continuing with his history and addressing Greenstein, “and we had to basically start over. And you had every right to want to know all about this.”
“We are now a year later,” continued Stahl. The end of the tolling period [the pause in the litigation] is the end of this year. And you not only have to worry about Whole Foods leaving at the end of this year—they believe they have other things to do than go through this endlessly, when there are other places that want them—but our litigation either has to be commenced and finalized or settled.”
“Do your deliberations, you considerations, issue your reports, read your reports—it’s got to be done by the end of the year. That’s the end of the tolling agreement. After that, you’re back wasting millions of dollars. And if you lose, if you lose you will have these folks who are opponents of the development thrilled with you because you will own—will have paid for—Chappaqua Crossing, because that’s what the litigation is about. That’s silly. You need the tax revenue. You get $3 million more a year [* see note, below] if you just do this development. It’s been ten years and [Summit Greenfield] still has no valuable, useful zoning on that property.” Stahl concluded, “It’s time to end it, one way or the other.”
Katz told Stahl, “I, for one, am not going to make a decision that will affect this town forever based on the threat of litigation that—it’s my understanding—you were losing, and was dismissed. You said that in a compromise everyone’s a little unhappy. I want to know,” said Katz, “what will make your client exceedingly unhappy but not unhappy enough to continue a lawsuit.”
“You’re there right now,” said Stahl.
“No, we’re not there,” said Katz, “because there’s been no compromise. I want to know how unhappy they can be and not sue.”
“It’s ten years,” said Stahl.
“What I want to know if you’re asking us to negotiate and to settle this, what is that point where your client will be unhappy enough to settle…”
“You’re at it,” repeated Stahl.
“No. I’m not talking about the time. I’m talking about the size,” said Katz.
“She’s talking about the square footage of the retail,” explained Greenfield to Stahl.
“What are the parameters of the project that can still get done,” said Katz, “where your client will not be happy, our town will not be happy and there will be no litigation?”
“We don’t have time to start over,” said Stahl.
“So you’re saying it’s not negotiable at all?” asked Katz.
Stahl responded that Summit Greenfield and the town had been negotiating for ten years.
“I cannot revisit [residential],” said Katz. “That’s been done. [Residential] has been approved. I’m talking about the project that’s currently before the Town Board, are you saying that you will not negotiate on behalf of your client to change the size [of the retail] at all? That if [the retail zoning] is not approved exactly as written [in the draft zoning, at 120,000 square feet] you’re suing us—is that what you’re threatening?”
“We’ve already sued you,” said Stahl.
“And you lost,” said Katz. “Let’s not go there. So you’re not willing to negotiate?”
“It’s been negotiated for ten years,” said Stahl.
“Not…this…project,” said Katz. “It has not been ten years. And I worked at Reader’s Digest when Summit Greenfield owned it and I was there when Reader’s Digest left. So I know full well that this has not been going on for ten years.”
“OK, how about the two years with Ms. Carpenter as the supervisor?” asked Stahl.
“Two years is not ten years,” said Katz. “And what I’m asking you is how can this particular project that is currently before the board be negotiated in a way that is acceptable and unacceptable to all parties?”
“It’s been negotiated for two years,” said Stahl.
“You’re talking like a lawyer,” ,” said Katz. “You need to stop and talk like someone who wants to compromise. I’m not asking you for an answer now. You probably don’t have one. You’re telling me that a compromise is when all sides are unhappy, but what you’re telling me is that your client is unwilling to be any less happy than they are right now. I know they’re upset that this has taken so long. I can’t change that. What I can do is vote to approve or disapprove this project, so I want to know how we’re going to figure out a compromise.”
Stahl advised Katz to read the Sherman versus the Town of Chester. “It’s pretty amazing,” said Stahl. “It’s this case.”
“I’ve read it,” said Katz.
“You are the Board. You are an extension and a follow-on to Ms. Carpenter and the prior Board where Mr. Chapin was a member,” said Stahl. “It doesn’t start or stop when you get on of off the Board. Summit Greenfield has been negotiating with this Board for over ten years.”
“I understand,” said Katz. “But not on this project. And what I’m asking you is to sit down at the table and figure out what your client’s willing to give on.”
“So the answer is—to continue Lisa’s thought,” said Brodsky, “is that if you don’t want to give us an answer, then we’ll make the decision for you. So we can either have a back and forth in a discussion about how we want to work as partners, or we can carry out our duty and make the decision on your behalf.”
“Whatever happens with the litigation happens,” said Greenstein. “Hopefully it’s a win for everybody—for the community and for the developer. I agree with you it’s time to make a decision and we’ll let the chips fall where they may.”
As the hearing ended and Stahl turned to leave, several Board members called after him that he hadn’t gone far enough in search of his dinner, that there were places in town he just didn’t know about.
Public comment closed; public hearing adjourned to November 18
The hearings on the zoning change, the Town Development Plan changes and the preliminary development concept plan will remain open—adjourned to November 18, 2014—Greenstein announced, since the Town Board will likely make alterations to the draft amendments in meetings between now and then.*[*Note: An earlier version of this article stated that public comment had ended; it has not. So long as the public hearing remains open, members of the public may comment.]
[* note:] “$3 million more a year” in tax revenues is calculated based on the complete occupancy and leasing of all the existing office buildings plus the retail space. According to charts provided in 2012, the increment between a fully-leased Chappaqua Crossing with retail—and one without—is around $500,000. More recently, the AKRF report assessed the economic benefit this way: The more stores, the more rent.
To find NCNOW’s archived pieces on Chappaqua Crossing, click HERE.
Town of New Castle Board Meeting 10/28/14 from New Castle Media Center on Vimeo.