Taking a surprise vote at about the end of their Tuesday night meeting, members of New Castle's Town Board agreed to back a settlement reached with Chappaqua Crossing developer Summit/Greenfield stemming from its 2011 lawsuits over how the town handled its residential rezoning application.
The vote, which was to authorize Supervisor Susan Carpenter to sign the settlement, was passed 4-0. Deputy Supervisor Elise Kessler Mottel, whose law firm has a business relationship with an affiliate of the developer, recused herself.
The settlement has already been signed on behalf of the developer, Town Attorney Clinton Smith said.
Under the terms of the settlement, Summit/Greenfield has essentially agreed to suspend its state and federal lawsuits in exchange for the town approving rezoning for some form of the developer's proposal to build retail space and a grocery store, as well as getting site plan approval from the Planning Board. If the developer does not get the requisite approvals, then it reserves the right to re-activate the lawsuits, which were filed in February 2011 and were about how the town reviewed its rezoning request for 199 townhouses and condominiums.
Additionally, the deal has “certain milestones” in it, Smith said, because Summit/Greenfield wants to be on a "set schedule." The term includes a timeline for going forward, he explained.
At the meeting, Smith referred to a rezoning approval as being one “that meets certain characteristics.” While whatever is approved can diverge from what is currently proposed, Smith explained that it has to for something deemed to be economically feasible, a status that could be determined by a third party such as a court or an arbitrator.
“They're not going to commit to walking away until they have the right to put a shovel in the ground," Smith said.
Councilman Robin Stout, noting the town's review of the retail plan, said that “we didn't want to have the old litigation hanging over our heads.”
The town is not legally obligated to go with an approval, Smith noted, nor is it required to abide by the milestones. If Summit/Greenfield were to re-activate its lawsuits, Smith explained that it would simply mean bringing back what has been the status quo.
Talking to reporters after the board meeting, Smith compared the deal to a game of freeze tag.
“We're frozen," he said in describing the status of the lawsuits.
Summit/Greenfield reacted favorably to the deal in a statement sent out later Tuesday night.
"We are pleased that a settlement of the ongoing litigation with the Town of New Castle has been reached and look forward to completion of the review process for the retail zoning on the site," the statement, which was sent out by spokesman Geoff Thompson, reads.
The developer, which bought the property from Reader's Digest in 2004, proposed several iterations during the late 2000s for a residential housing on the site, with 199 having been its last version proposed. Adding the proposed residential units, however, required a zoning change.
The Town Board, Summit/Greenfield, in litigation, claimed that the town undermined the economic use of the property and engaged in a "sham" review process. The federal lawsuit, which also included a claim that the town was hostile towards affordable housing, originally contained Town Board members as co-defendants but they were removed from the case by the judge in July. The state lawsuit was dismissed earlier this fall but quickly appealed by the developer.
Summit/Greenfield has proposed rezoning for, and building 120,000 square feet of retail space on the south end of its property, which it unveiled in October and did so in reaction to a similar proposal from the Town Board. The town's idea, unveiled earleir this year, was merely legislation for creating a retail overlay zone on top of the site's existing commercial space.
Additionally, Summit/Greenfield has agreed to pay the town $905,000 in connection to fees owed during the town's residential rezoning review. The town brought a counter suit on the matter after the developer filed its litigation, claiming that is was owed roughly $1,500,000.
The settlement was presented to the town board in an executive session held earlier on Tuesday night, Smith said. He declined to comment on how long both sides were in settlement talks.
Smith also said that the deal does not affect several outstanding challenges that Summit/Greenfield has to its property tax assessments, which include its assessed values from 2008-11.
The story has been updated to include more information, including comment from Summit/Greenfield.