By JUDY RATTNER
On Dec. 21, a panel of judges in the appellate division of the State Supreme Court unanimously rejected the village's motion to reargue its objections to the development, or to grant the village permission to bring its case to the Court of Appeals.
By all accounts, the village now faces an uphill legal battle, because the Court of Appeals hears only a fraction of the cases that apply for consideration. Nonetheless, on Dec. 24, the Village Board of Trustees authorized special counsel Gary Fishberg to make a motion directly to the court to hear the village's appeal of a July 2006 ruling by Supreme Court Judge Bruce D. Alpert. Alpert ruled in favor of Chase Partners, the developer that was in contract to develop an $85 million luxury complex on the 7.1-acre site.
AvalonBay Communities, a Virginia-based real estate development and management company that has built several apartment complexes on Long Island and has others in the planning stages, is now the owner of the property, having closed on it in November. The company has released plans to develop the site into 349 studio, one- and two-bedroom apartments that it has dubbed Avalon at Rockville Centre.
In his ruling, Alpert said that Chase's proposed project complied with the village's zoning code at the time, and he criticized village officials for what he said was their intentional delay of the project in an attempt to change code requirements and deny Chase permission to build. Since then, the village has failed in its attempts to appeal that ruling.
Had the decision of the panel of appellate judges not been unanimous, the case would have gone automatically to the Court of Appeals.
"Both our motions [to appeal to the Court of Appeals and to reargue the case] were denied," said Fishberg, "But that doesn't close the door to appeal because, alternately, you can also apply directly to the Court of Appeals for permission to appeal the case, and we've done that. If you do it within the requisite time frame - and we have - there is still an automatic stay against the project going forward. They can't break ground and they're not entitled to any building permits while that automatic stay is in effect.
"We obviously think we have good reason to go there, and that's why the village board is continuing to appeal the ruling," Fishberg continued. "The board believes we still have an argument to be made to the Court of Appeals because our belief is that the appellate division of the Supreme Court did not follow precedent in this case and missed the mark ... We hope to convince them to hear our argument."
Michael Faltischek, who represented Chase Partners and now represents AvalonBay Communities, disagreed. "As I've said all along, it's just a further reiteration of what the whole world has been saying to the village all along: that this is a development that's appropriate and should proceed," Faltischek said. "They do not have a right to appeal. They can ask the court for permission the same way they asked the appellate court for permission, but a panel of judges rejected it, and I'm confident the Court of Appeals will too.
"I think the village has serious monetary damage exposure from the federal case," Faltischek added, referring to Chase's case against the village. "One of the elements is that they are improperly delaying the project, as a result of which the cost of development keeps increasing. The longer they keep this process going and are told that it's improper, the more it is likely to cost them in the damage suit."
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