By TIFFANY RAZZANO
On Sept. 18, a panel of judges denied a previous appeal by the board of the July 2006 ruling by Supreme Court Judge Bruce D. Alpert in favor of Chase Partners, the developers of the complex, Signature Place, which is proposed to for the former Darby Drugs site at 80-100 Banks Ave. Alpert found the village Planning Board's site plan review for the location, which determined that such a large development could be built there, but imposed a number of conditions on the developer, "arbitrary and capricious." The panel agreed with Alpert, saying the board "based [its] statement of findings on generalized, speculative comments and opinions of local residents." The village currently also faces a $25 million lawsuit for damages from Chase.
At a Sept. 25 executive session, the Board of Trustees authorized law firm Cullen and Dykman to file a motion for leave to appeal the cases with the Second Department of the Appellate Division, said Jeff Kluewer, village spokesman.
Kluewer said the board also authorized the law firm to file a motion with the same department to re-argue the lower court's decisions "concerning the grandfathering clause, bad faith and [a] parks/recreation trust fund fee."
In his decision, Alpert said Signature Place - despite any changes in local zoning laws - would be grandfathered in, said Gary Fishberg, the special counsel to the village on this case. "This is totally contradictory to the law the Court of Appeals has set forth," he said. He also said the Court of Appeals has decided that the decision of any case brought before the court will be subject to the law in effect on the day the decision is rendered.
This means, Fishberg says, the only way around this decree would be to find the village in "bad faith." He said the Appellate Court found in its original decision that based on the process of proposed new developments, which includes getting a state environmental review and a site plan review, "it appears [the village] couldn't be in bad faith. ... The delay in getting this done was acceptable. ... The court says there wasn't any undue delay. ... All of these things had to be done in a certain sequence and there wasn't any undue delay. ... So that seems to suggest that the special circumstances that would undo the 'day of decision' rule were not there."
Alpert also threw out several of the conditions specified by the Planning Board's site plan review, including a recommendation that Chase either provide park space or pay a recreational fee because building Signature Place would affect recreation in the village, Fishberg said. He said the board wants the court to reconsider this decision.
Cullen and Dykman was also instructed to add any other significant decisions by the lower court that were not addressed in the Appellate Court decision to the motion to re-argue, Kluewer said.
Comments about this story? TRazzano@liherald.com or (516) 569-4000 ext. 221.
