Village says BT Holdings can start building, but developer isn't happy

By Frances Ruth Harris
CHESTER — BT Holdings can build 120 residences behind the ShopRite Plaza, Chester village trustees agreed during a special meeting held May 20.

But developer of BT Holdings, Frank Nussbaum, wants to build many more than that, and he's suing the village over the impasse. His plans currently include 340 units. Most are condominium townhouses, with 100 units designed for senior citizens.

Nussbaum is not happy.
The village's board resolution recognizing the developer's vested rights has "no legal force or effect and is nothing more than a lame litigation tactic that will not be successful," he stated in an email. The village board "should honor its legal obligations under the 2013 agreements with us and the Town."

The trustees recognized BT Holdings' vested rights after emerging from a 45-minute executive session with attorney Dennis Lynch, who is representing the village against BT Holdings; Kristen O'Donnell, the village's planner; and Ian Schlanger, the village's solicitor.

In an email, Lynch described vested rights as "a well-established land use legal principle that allows for the equitable treatment of a property owner when zoning laws change as they did in this matter."

The BT Holdings site is more than 60 acres. The vast majority of these acres were once located in the town. The village annexed the rest of the site so that the new development could take advantage of its superior water supply, and so build more intensively. Under town zoning, Nussbaum would have been limited to 120 residences. But while the area has been unzoned since its move to the village, trustees agree that the owner's vested rights entitle him to move forward with his building project.

In federal court on April 15, Judge Cathy Seibel had urged both parties move the case to the less costly state court system. She disagreed with BT Holdings' claim that it was a "takings" case, since the village wasn't stopping Nussbaum from building on his site.

Lynch, in defending the village, argued that Nussbaum didn't have a case because he hadn't yet applied to the village to build even one house.

Nussbaum's attorney, Kelly Pressler, countered that the village's own laws required that applications be made in accordance with village zoning, which didn't yet exist for the site.

Judge Seibel acknowledged the "chicken and egg" nature of the problem, and urged both parties to "duke this out" in state court.

In a letter to the editor last week, Nussbaum said he dutifully complied with all requests made over the years by the village board, which then reversed course, leaving him holding the bag. He vowed to continue his suit, and to recover legal fees and other expenses, plus damages from the reduced value of his property. He said it will amount to "millions of dollars payable by you, the taxpayers. And while it may take a year or two...we have the time and resources to follow through. But again, this is not what we want, as it benefits no one."

The years-long battle looks like it will continue.

Online "Village sticks with limiting development at BT Holdings": http://bit.ly/1M7HVWT

"Chester's '180' will cost taxpayers millions to defend": http://bit.ly/1HMLBKk