New Castle Threatened With More Litigation on Chap Crossing

New Castle officials were issued an ultimatum last week to take a vote on the requested rezone of the former Reader’s Digest property before the end of the year or once again face litigation from developer Summit/Greenfield.

Just before the end of a three-and-a-half-hour Chappaqua Crossing public hearing Oct. 28 on the proposed zoning change for the site, attorney Howard Stahl threatened to reactivate Summit/Greenfield’s lawsuit that was originally filed in February 2011, but suspended about a year later when the developer and the town sought a compromise.

At the suggestion of the town, Summit/Greenfield earlier this year revised its project, which still calls for 120,000 square feet of retail space but now is laid out in what has been referred to as a traditional neighborhood design. The retail project would be anchored by a 40,000-square-foot Whole Foods, and include a 25,000-square-foot gym or fitness center and about 15 to 20 stores of between 2,000 and 5,000 square feet. Summit/Greenfield had 111 residential units approved in 2011.

“I can’t believe there’s a single topic that you all haven’t looked at or your professionals haven’t looked at,” Stahl said. “It’s time now, for a legal reason, to make a decision. You have to decide what you’re going to do.”

Stahl then said that unless a vote on the proposed rezone takes place in the next two months, the developer will head back to court to sue.

“After that you’re wasting millions of dollars in litigation,” he said.

His comments prompted Councilwoman Lisa Katz to challenge Stahl, saying that she would not be pressured or intimidated into making a rushed decision.

“I, for one, am not going to make a decision that’s going to impact this town forever based on litigation, that to my understanding, you were losing,” Katz said.

Katz then quizzed Stahl about a compromise that has less retail square footage than what is currently proposed but still acceptable to Summit/Greenfield.

“You’re at it,” Stahl replied. “You’re right there.”

“No, we’re not there,” Katz shot back. “There’s no compromise. They’re asking for what they’re asking for. I want to know how unhappy they can be and they’re not going to sue.”

Stahl then reminded officials that in December it will be 10 years since Summit/Greenfield bought the property, and the company has had to revise plans for four different administrations.

Although Summit/Greenfield’s original lawsuits were partially thrown out, Stahl argued that a decision in May by the Second Circuit Court of Appeals in the case of Sherman v. Town of Chester bodes well for his client. In what he described as nearly identical circumstances, the court found the upstate town wrongly kept throwing up roadblocks every time the property owner was asked to make changes to the plans over a 10-year period.

Complicating the issue is that a representative from Whole Foods told the board last week that unless approvals are in place by the end of the year, the company will consider terminating its lease with Summit/Greenfield.

Mark Mobley, Whole Foods’ northeast region executive construction coordinator, said while the company is excited to be part of the project, representatives are concerned about the sluggish review and approval process.

“We have capital allocated that we have to spend, and if we don’t get to a point  and we stop, we do have the option to terminate, and we will think very seriously of doing that and moving on to another location where we can go on and build and get it in,” Mobley said.

If Summit/Greenfield were to obtain the rezone, it would still need to go before the planning board for site plan approval. John Marwell, the applicant’s attorney for the town’s review of the project, said after the meeting that he doesn’t believe that Whole Foods would terminate its lease as long as progress is being made.

In the days following the meeting, other town board members reacted strongly to the sudden showdown with Summit/Greenfield’s litigator. Supervisor Robert Greenstein, who was elected last year in part because of his opposition to the proposed 120,000 square feet of retail at Chappaqua Crossing, said he was not surprised by Stahl’s appearance at the board meeting or his comments. Greenstein has previously stated that he believes the board will vote before the end of the year barring unforeseen circumstances.

“I think we have all the information we need to make a decision,” Greenstein said last Friday without tipping his hand how he would vote.

Meanwhile, councilmen Jason Chapin and Adam Brodsky said they thought the litigation threats were counterproductive. They also agreed that some of Stahl’s information was incorrect, such as saying that the applicant had the responsibility for all the costs of the review.

Brodsky said he was offended by Stahl’s comment that the project would be an improvement because there was nothing to eat in downtown Chappaqua but Dunkin’ Donuts and pizza.

“I understand that they’re eager to have the board vote, but that was not the best way to get our attention and get on with the vote,” Chapin said.

Earlier in the evening, the Manhattan-based AKRF, a town consultant on the project, unveiled its updated competitive effects analysis to determine if the proposed Chappaqua Crossing retail plan would negatively impact the existing hamlet.

John Neill, who analyzes economic and real estate data for the firm, said while there would be some overlap with downtown businesses, it would not have an adverse impact. He said about 80 percent of the town’s retail demand of about $428 million annually is spent outside of New Castle.

Neill also said most of downtown Chappaqua’s customers come from a one-mile radius, while the proposed retail center would attract shoppers from a 20-minute drive time.

“Chappaqua Crossing would not affect the overall viability of the of the hamlet’s core,” Neill said.

The public hearings are expected to resume Nov. 18.