A federal judge has removed former New Castle Supervisor Barbara Gerrard, along with former Councilman Michael Wolfensohn and current Councilman Robin Stout, as defenants for Summit/Greenfield's federal Chappaqua Crossing lawsuit.
The decision came from Judge Kenneth Karas, who signed the 5-page order on Monday
In his ruling, Karas agreed with an argument that the town made last fall when it filed its motion to dismiss against the board members: including them in addition to the town as defendants is redundant.
"Plaintiff has not presented a persuasive argument, or cited to dispositive authority, for the Court to deviate from this well-established practice," Karas wrote.
"We're pleased," said John Walsh, a lawyer for the town.
"I made that argument myself personally," Walsh said, when asked about the contention that including the board members was redundant.
"It's redundant, that's what the judge said," replied Gerrard, who is an attorney by profession. She spent most of her tenure as supervisor, having served from 2008 to 2011, overseeing the application. She was deputy supervisor during the early stages of the proposal.
The federal suit is still pending, with the Town of New Castle as the remaining defendant. It is currently in the discovery phase, according to Walsh, with its document stage concluded and depositions to come. Summit/Greenfield also filed a state lawsuit against the the town, not including the board members. The town has the state suit and is waiting for a judicial decision.
Summit/Greenfield is suing the town in both courts over how the board's review ofits application to rezone part of the property for residential usage; the site is now a mix of commercial and multi-family residential zones.
The suit was , right when the board was winding down an environmental review for the rezoning request. The town board, in April 2011, voted for rezone part of the property for residential usage, but that Summit/Greenfield proposed. The developer a few weeks later.
In its state lawsuit, Summit/Greenfield referred to the town's review as a "sham," and argues that the town made a de facto taking of the property, which is roughly 120 acres, by limiting development of it, and thus economic usefulness. The developer is seeking both damages and for the town to take over the property coupled with monetary compensation.
In the federal case, the owner and developer argues that the Fair Housing Act has been violated and that the town was trying to stop the construction of affordable housing; 20 out of 111 units approved are designated for such purpose. However, in another section of its legal argument, Summit/Greenfield believes that limiting the housing to 111 harms the project's economic viability.
The 199-unit proposal, announced two years ago, is the most recent iteration from Summit/Greenfield, which was proposed a residential/commercial mix on the former Reader's Digest site in some form since 2005. Its initial vision was to have the proposal co-exist with Reader's Digest, who leased back the property after selling it to the developer in 2004. However, the one-time media titan filed for bankruptcy in 2009 and
The board members were listed as defendants in their professional roles. However, Karas did not rule out the possibility of the suit being refiled against them. The case was dismissed as being without prejudice, which is a legal term that means the decision was not made based on the merits of the case, and that the plaintiff can still file again. Whether or not Summit/Greenfield would refile is not known.
Despite the legel battles, talk about what next to do with the site has not stalled. The town board is proposing that the commercial portion be rezoned to allow for a 50,000 to 60,000-square-foot grocery space, as a way of bringing a full-service supermarket to the hamlet. The board for the proposal, which Summit/Greenfield does not have a role in.
Summit/Greenfield, meanwhile, continues to manage its commercial asset. The and and use of during its garage construction in Mount Kisco, are among such examples.
For our previous coverage of Chappaqua Crossing, click here.