In an attempt to avoid one lawsuit, Greenburgh Town Supervisor Paul Feiner may be walking into another.
The town of Greenburgh is considering selling the property formerly owned by Frank’s Nursery to Game On 365 L.L.C., rather than leasing the property to Game On 365 for 15 years. The project has been stymied by a lawsuit filed by Elm Street Sports Group L.L.C., with Elm Street’s CEO Donald Scherer saying the lease is illegal and a violation of Westchester County law. Scherer runs Ardsley’s House of Sports.
County law states that a town must sell any property acquired via tax lien, though Feiner has said that state law, which allows the town to lease the property, supersedes county law.
While Feiner said he does not believe the lawsuit has merit, he said he felt selling the property will save residents and Game On 365 from years of legal wrangling.
“The sale would eliminate the grounds for the existing lawsuit while simultaneously allowing for the project to proceed,” Feiner said. “Years of time-consuming and expensive litigation can be avoided.”
Martin Hewitt, project manager of Game On 365, said that with the competition vowing to do anything to stop the lease, it was smart to just buy the property outright.
“They have vowed to do anything they can,” Hewitt said. “Avoiding this lawsuit gives us a better chance to complete this facility at a faster pace.”
If Game On 365 purchases the property, it will be responsible for all the cleanup costs, which could be expensive. Carcinogens have been found at the site. The town and Game On 365 are still negotiating a price and would not disclose a dollar figure. They hope to have it resolved quickly.
“I see this as a way to try and avoid years of litigation,” Hewitt said. “Nobody wants to litigate. It costs a lot of time and money. Our goal is to bring the Westchester Fieldhouse to Greenburgh. This is the best and fastest way for everyone to get involved.”
But if Greenburgh thinks this move will end all litigation, not so fast, says Scherer, who said he will sue the town again if they sell the property to Game On 365 without issuing a request for proposal (RFP).
“We would like to bid on it. Why not?” Scherer said. “This is a shady backroom deal. They can’t lease it, because the lease is illegal, so they’ll just sell it. You don’t take the first person that comes to your door and say, ‘Hi, I want to sell it to you.’”
Scherer said it is the town’s fiduciary duty to get as much as they can for the property.
“Selling the town-owned property without an RFP is insane,” Scherer said. “If they want a sports complex, we’ll build a sports complex. I operate in this region; we know how to do it. We would love to expand House of Sports.”
The town did an issue an RFP for the property in 2011, receiving two offers, with the highest offer at $1.5 million. The town board preferred to lease the site, so it could keep its options open, but now feels it has no choice with Scherer’s lawsuit.
“The land (would) stay vacant for years,” Feiner said. “The property will stay contaminated while the litigation proceeds. The town won’t generate the tax revenue from the property and will continue to pay taxes to other levels of government (losing money).”
The town said that Game On 365’s offer is substantially higher than $1.5 million. Feiner said if the town sells the property to Game On 365, any lawsuit from House of Sports would not delay construction or cleanup.
Hewitt said he would like to open in 2013. If the sale is completed, he would still need approvals from the zoning board, planning board and building department.
On Nov. 6, Greenburgh voters overwhelmingly approved a referendum to allow the town to lease the foreclosed property to Game On 365.
Feiner said the town would address the issue at the town board’s Jan. 9 meeting.