Developer loses zoning challenge but still looks forward to collecting multimillion award

Appeals court denies BT Holdings high-density subdivision: Developer Frank Nussman says breach of contract ruling still stands

Published Jan 17, 2019 at 6:30 pm (Updated Jan 17, 2019)

Photos

Developer Frank Nussbaum with lawyer Kelly Pressler at a village board meeting in 2015, after the new board decided against instituting high-density development at the BT Holdings site. (Photo by Frances Ruth Harris)

By Frances Ruth Harris

CHESTER — The New York Court of Appeals dealt BT Holdings another blow on Jan. 15 by denying its latest court challenge to the Village of Chester's recently adopted single-family zoning amendment.

“I’m happy for the people of the Village of Chester that the highest court in the state has confirmed the village’s right to enact its own land use plan," said Chester Mayor Tom Bell Chester in a statement.

Village attorney Donald J. Feerick Jr. of Feerick Nugent MacCartney said the village’s legal rights have been vindicated.

"The zoning upheld by the highest court will continue serving to protect the community against over-development and over-burdening of precious municipal infrastructure and resources, while affording a beneficial opportunity for business to flourish," he said in a statement. "The mayor and trustees remain committed to doing the right thing."

Developer Frank Nussbaum of BT Holdings said the decision doesn't alter the village's breech of contract, for which a jury awarded him millions.

"We are disappointed in this ruling on a secondary case but it in no way affects the outcome of the main case whereby an Orange County jury awarded us what is now $3.3 million and counting for the village board’s breach of contract and bad faith, an amount we look forward to collecting when their appeal is denied," he told The Chronicle in an email.

Nussbaum tried for ten years to get a high-density townhouse development built on 68 acres behind the ShopRite mall. He fought to have his acres, which, except for about seven acres, was originally located in the Town of Chester, annexed to the village. When it belonged to the town, the site was zoned for single-family housing, which meant far fewer residences could be built there than what Nussbaum had in mind. The town also did not have the water infrastructure to support intensive development.

Town fought the annexation in court and lost. But before Nussbaum could secure the high-density zoning he needed for the 340 residences — 240 townhouses and 100 senior citizen units — he wanted to build on the newly annexed land, voters elected a new village board that changed course. The new board decided to retain the same single-family zoning the site had before the annexation. That means Nussbaum is allowed to build only 120 residences.

In 2017, the NYS Supreme Court dismissed part BT Holding’s challenge, and in 2018 an appeals court dismissed the remainder of the action.

Also in 2017, a jury unanimously awarded Nussbaum $2.375 million after finding the Village of Chester guilty of bad faith and breach of contract. The village appealed the case. The village's legal team said at the time that "it is the appellate courts that review and reverse errors in the trial court. The village will comment further only after the appellate court rules."

Related storiesRelated stories at chroniclenewspaper.com:

"Village to pay developer millions for breach of contract"

"Village wins on preference for single-families over townhouses"

"Judge dismisses developer's zoning complaint"

"Chester rejects all three zoning proposals"