Letter to TB: The only question is whether to allow retail at Chappaqua Crossing or not

“The Board will not have the ability to pick and choose tenants in the future.”
Saturday, December 13, 2014
by Jeff Blockinger

Editor’s Note: On Monday, December 8, Jeff Blockinger sent the following comments to Town Board members. Blockinger has spoken at previous public hearings, telling Town Board members should concern themselves with fixing the existing problems of downtown Chappaqua before creating a “third hamlet’ at Chappaqua Crossing.

Soleil Property LLC
65 King Street
Chappaqua, New York 10514

December 8, 2014

Rob Greenstein
Town Supervisor
Town of New Castle
200 South Greely Avenue
Chappaqua, New York 10514

Dear Rob,

I had the opportunity to review the comments of the Board of the Town of New Castle (the “Board”) at the last public hearing regarding Chappaqua Crossing’s Revised Preliminary Development Concept Plan (the “PDCP”) and am concerned that there seems to be a view that the retail and restaurant mix at Chappaqua Crossing will be determined by a collective effort among Summit Greenfield (“SG”), the Board and the community at large. 

If my observations are correct, that reflects a fundamental misunderstanding about the legal authority of the Board to influence tenant selection in privately owned commercial real estate developments.  Because I cannot make all of the public hearings, I am making my comments available to Christine Yeres. 

As I am sure you are aware, both the New York Senate and Assembly introduced bills in 2012 to regulate “formula retail” (chain stores and restaurants) because, as described in the justification statement of the Senate Bill, formula retail establishments have “invaded village and hamlet downtowns, eroding historic character, aesthetics, and unique community character and identity, replacing it with the sameness of Anywhere, USA.”  See NY Senate Bill S1771-2013 (the “Bill”). 

The Bill further states that there is a lack of “express statutory authority” for this type of zoning in New York and there is concern about whether enacting such restrictions would be “an impermissible regulation of economic competition.”  The purpose of the Bill is to permit these restrictions if they are enacted “pursuant to a comprehensive plan and for a legitimate purpose such as protecting historic character or community identity.”  Importantly, the Bill has twice been referred to the Local Governments committee with no further action.  Accordingly, the Board does not have a current right to enact this type of zoning restriction.  I have not engaged in any case research but am assuming that no clear authority exists to protect the historic character or community identity of a newly built strip mall development.

Without this authority (and even if the Bill ultimately becomes law) the Board will be taking significant risk by attempting to impose formula retail restrictions at Chappaqua Crossing.  I believe it will fail for many reasons. 

First, there is no obvious interest that warrants protection.  The Board will need to argue that the restrictions are for the purpose of protecting the historic character of a newly built strip mall that is located on a large parcel that was just rezoned to permit 111 newly constructed housing units and 120,000 square feet of retail space in a traditional strip mall design.  I cannot imagine any judge being persuaded by that argument. 

Second, in approving the PDCP, the Board will have relied on two case studies set forth in the AKRF Report when it considered the viability of the retail development at Chappaqua Crossing.  Each of those strip malls are predominantly occupied by formula retail establishments.  In this regard, the Board will need to defend its use of two case studies that would be impermissible as a basis for the rezoning.  The internal inconsistency is obvious. 

Finally, we all observed Howard Stahl’s sabre rattling at the October 28 public hearing and are well aware that SG is standing ready to unleash Fried Frank on the town if the Board acts in an arbitrary manner.  In this case, any such restrictions would lack any legitimate purpose and will severely impact the commercial viability of this development, including SG’s ability to obtain financing.  Even if SG agreed to contractual restrictions today, they certainly will be challenged in the future if such restrictions cause low rents or high vacancies.  This litigation will be costly and ultimately the town will lose because Mr. Stahl will be correct.

I feel strongly that the Board should move on from this conversation and acknowledge that the only question on the table is whether to permit retail at Chappaqua Crossing or not.  If the board should find the PDCP to be an appropriate usage, it will not have the ability to pick and choose tenants in the future.

Occupancy will be determined by market forces

as you have advocated.  The Board needs to be comfortable with this reality.  I also feel strongly, as we have discussed many times before, that the Board should be prioritizing the well-documented, existing problems within the downtown hamlet and address those problems before it moves to create a third hamlet.  Feel free to reach out if you would like to discuss.

Best regards,

Jeff Blockinger

cc: Lisa Katz
Adam Brodsky
Elise Mottel
Jason Chapin
Jill Simon-Shapiro
Christine Yeres

We encourage civil, civic discourse. All comments are reviewed before publication to assure that this standard is met.

Ketchum,ID. Aka Sun Valley has never allowed chain stores which has kept the town very charming and Mom and Pop in business!

By Former resident on 12/13/2014 at 10:09 am

Of course retail should not be permitted at CC.  It should never have been considered.
Susan Carpenter in her stupidity brought this mess to our town. 

There are much better uses for that beautiful campus.

Why we are where we are now is because Rob is a fraud.

By anyone but Greenstein on 12/13/2014 at 11:44 am

Again another argument that retail at CC will harm downtown.
Repeating what many have said we recognize, downtown Chapp has been in a state of decline for years. The mix of stores is poor, the layout-topography “up the hill vs down the hill” configuration are a huge challenge. We have a large metro north parking lot and middle school smack dab in the center. Add to these challenges the dynamic and changing face of retailing with online commerce eliminating classic Main St type establishments like bookstores, record stores, travel agents, shoe stores, photo shops, etc and downtown is faced with severe headwinds. The current state and continued erosion exists without retail at CC. To blame retail at CC for downtowns demise is ridiculous since it hasn’t even been built yet.
We should approve retail at CC- get Whole Foods a gym and other community amenities and necessities while we address improving downtown. Studies by the town and the developer indicate that CC will be complimentary to downtown and actually draw people to Chapp. The overflow will bring shoppers and diners to Chapp. It cant get worse – we must improve it. Today, many Chapp residents don’t shop downtown because they go to the supermarket in Mt Kisco . Armonk and Pleasantville. We lost their dollars. Build Whole Foods and they will shop local. 
That said, we lost our winter Chapp Farmers market because CFM was unwilling to accept the space at CC that was offered. Now we go to Pleasantville FM. Once there I will go to Pleasantville Starbucks /Dunkin Doughnuts. I will get my Holiday wines and liquors in Pleasantville and do some gift shopping there. Had CFM moved to CC I would be in my hometown and drive down the hill to do some shopping.
Someone please explain the thinking and logic behind declining CC on their invitation to house CFM. And please don’t tell me they found it unsuitable since the Church was small dark and dingy for CFM and they made it work. There is politics at work here.

By resident on 12/13/2014 at 1:00 pm

Having seen Armonk and Chappaqua, it’s plain to me that Armonk is more upscale.Chappaqua appears rundown. As to Chappaqua Crossing, I am on the other side of the Saw Mill so I am not a nimby. However, although I would like a Whole Foods locally, the traffic would be a nightmare. Delivery trucks cannot use the parkway. 117 cannot handle the volume. Add the traffic of customers and getting to or across the SawMill Parkway will be a problem. I wish I had an answer.

By Jelmd on 12/13/2014 at 4:42 pm

I only wish that Stahl had threatened me.  I love to litigate against bullies.  I’d take huge pleasure in running him down.  I really don’t know what Rob and the boys are thinking, backing down to Fried Frank’s baloney and running scared from rap firms week arguments and flimsy alleged precedents.  Jeff is right that if we let ourselves be bullied into giving these creeps the zoning variance that they are demanding, that we will have an effect given them the legal basis to push forward with a bad project – a strip mall – when they do not have that legal basis now.

Rob, dammit, they are bluffing,trying to bully you into giving them a legal argument when right now they know darn well they don’t have one. Don’t be an idiot. I respect you – I’m not calling you an idiot – I’m telling you that you are being scammed. Stand up to stall

By Local Yokel on 12/14/2014 at 7:39 am

If the Board wishes to grant a zoning change, it should be subject to a municipal referendum.  Too complex for the board to make a sound decision without explicit citizen approval.  Cost of litigation long-term outweighs the difference between increase tax from CC – expense (services, decrease in value and therefore taxes from adjacent property), etc.  I agree that town is being bullied.  Thought this board was inclined to seek community input on best use of property.  Why is this zoning change being jammed through?

By Concerned resident on 12/14/2014 at 4:04 pm

Just off the top of my head – how’s this: move both middle schools to CC.  Move town hall, the community center and the art center to Seven Bridges.  Sell the current art center.  Use the newly vacant downtown properties for commercial or subsidizied housing.

By Another thought entirely on 12/17/2014 at 11:47 am

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