Developer rejects village's 'equitable' solution
By Frances Ruth Harris
CHESTER — Chester village trustees told the BT Holdings developer he can go ahead and build — as long as he keeps the number of condominium townhouses to 120.
This number falls far short of the 340 units Frank Nussbaum had been requesting since getting the town-to-village annexation he wanted. And it puts Nussbaum and the village back to where they were approximately a year ago.
By annexing about 60 acres of the BT Holdings site, previously located in the town, the village made its superior water supply and infrastructure available to the proposed development. But after years of struggle and controversy that landed several times in court, the village is saying no to the greater number. The newly annexed land, freed from the town's more restrictive zoning, needs new zoning rules from the village.
Trustees held a special meeting on May 20 to formally recognize the vested rights associated with BT Holdings property and to discuss Nussbaum's legal challenges against the village. The board immediately moved to executive session, which excludes the public, to meet with Dennis Lynch, who is representing the village against BT Holdings; Kristen O'Donnell, the village's planner; and Ian Schlanger, the village's solicitor.
When they returned about 45 minutes later, they voted unanimously to recognize BT Holdings' vested rights. No questions were taken from the public, and when Mayor John Bell asked for comment from board members, all was quiet.
Dennis Lynch stated in an email to The Chronicle defining vested rights as "a well-established land use legal principle that allows for the equitable treatment of a property owner when zoning laws change as they did in this matter."
Simply put, the village recognizes BT Holdings' right to build.
But Nussbaum vigorously disagrees. He said his attorneys believe the resolution has "no legal force or effect and is nothing more than a lame litigation tactic that will not be successful."
Nussbaum said he wants the village board to honor a legal agreement he entered into with the village in 2013. He sees this agreement as allowing him to build the greater number of units.
The earlier agreement was made with a different board, led by former Mayor Philip Valastro, who supported the controversial land annexation. He had said it was better to have the village control the project in that neighborhood rather than the town.
She also said that “on the face of it, it appears that the plaintiff (BT) was led down a primrose path."
Both parties could "duke it out" in state court where this would proved to be less costly and a decision could be adjudicated, the judge said.
With the May 20 resolution, the village is making clear it is not stopping Nussbaum from building.
But Nussbaum said a May 11 ruling denying the village’s Motion to Dismiss/for Summary Judgment "was a major ruling on the four core state claims we have against the village alleging, among other things, that they breached their signed contracts with us by not following through on their promise to adopt the requisite zoning to allow for construction of the project they had approved during the State Environmental Quality Review (indeed they haven’t adopted any zoning since annexation three years ago in June 2013 and only seemingly in response to our federal appeal have they finally indicated that they are zoning the property, albeit without any consultation with or notice to us and, more importantly, to a zoning that still doesn’t remotely satisfy the signed stipulations). In that Decision and Order, the judge denied all of the village’s reasons to dismiss the claims.
"The village has indicated that they will appeal this decision, as we did for the federal claim, but that does not make this very important ruling any less significant. Indeed with the denial of their motion, we intend to ask the court for a trial in short order."