Chester attorneys list 'red herrings' in their motion to dismiss Greens' suit

Attorneys for the Town of Chester have submitted a motion to dismiss the $100 million federal discrimination lawsuit brought by the developers of the Greens at Chester.

“The red herrings in Plaintiff’s pleading are numerous," write the attorneys, Mary Marzolla and Patrick Knowles, in their motion earlier this month.

They've submitted these objections before, in a Dec. 19 memorandum to Judge Cathy Seibel. They got pushback from New York State Attorney General Letitia James, who intervened in the suit because of what she sees as a violation of the Fair Housing Act.

The town attorneys say the developer, who is suing for breach of contract in the 110-acre, 431-unit housing development, knew the Greens was not in compliance with agency approvals, and yet "tried to pull a fast one by unexpectedly dropping off an unsolicited check at the Town Clerk’s Office on July 18, 2019, without any agreement or approval required by Town Code, one day before filing its Complaint on July 19, 2019."

They say the developer does not have a water permit and so has no right to a building permit, and furthermore does not have the required performance bond. The unsolicited delivery of the check, "disingenuously designed as a retroactive cure, could not cure the long-standing defect," they write.

Project was 'long dormant'

To successfully plead a breach of contract claim, say the attorneys, the developer must show how the town breached their contract.

The attorneys addressed the 2010 court settlement agreement requiring the town to allow development on the site. They argue that the town met its side of the agreement, and approved a subdivision plan for the site in 2013. The current developer, Livy Schwartz, purchased the property in October 2017, when the project was "long dormant," they write.

He purchased the property "despite having actual prior notice of the performance bond breach and that, as a result, it lacked any legitimate claim of entitlement to the relief requested," the motion states.

Knowing he was not in compliance, they write, Schwartz "boldly submitted building permit applications in November 2018 and May 2019 that facially breached the 2010 Settlement Agreement, the 2013 subdivision approval, and approved maps by seeking to build home significantly larger than allowed.”

That the developer was reduced to "making baseless claims of discrimination and engaging in a public relations war against the town," the developer showed that he knew he was not entitled to approval of his plans, the attorneys state.

The attorneys also argue that the current and former supervisors, Bob Valentine and Alex Jamieson, were within their rights when voting on the Greens. "The claims must be dismissed against them on the doctrines of legislative and absolute immunity," they write.

“This Court should reject Plaintiff’s attempts to turn the FHA on its head," they write in their motion. The developer's “voluminous complaint boils down to a misplaced gripe over two building permit applications that the Town appropriately denied.”

Developer Livy Schwartz said in response to the motion that "the town has come up with another new pretext for denying building permits. After having told us repeatedly that we were not permitted to post a bond, the town now argues that our permit applications were deficient because we didn’t post a bond. This is the equivalent of shoving us off our feet and then asking us what we are doing there on the floor. We are confident the court will see through the town’s shell game."