The question of how far Westchester County will go to offer a legal umbrella to the nonprofit chosen to manage Playland is now threatening to derail the entire process.
Sustainable Playland Inc. returned to a county legislative review this month after four weeks sitting on the sidelines, but if the group was hoping the legislature would offer assurances of legal protections, it received anything but.
The group, a Rye-based nonprofit, said it had stepped back due to legal uncertainties around its agreement with Westchester, but announced in an April letter from President Kim Morque it was coming back to the table based on some legal assurances.
“We further understand that the county will represent us in any current or future lawsuits relating (to) the approval process and implementation of the (Playland Improvement Plan) should SPI be named as a respondent,” Morque wrote in his letter. County Executive Rob Astorino, a Republican, said during his State of the County address May 1 that he had given the assurance.
Sustainable Playland already has an asset management agreement in place with the county that directly contradicts that statement and says SPI would be on the hook for legal costs as management company. During a May 13 meeting of the Board of Legislators parks subcommittee, Democratic Legislator Peter Harckham said the statement also contradicted other agreements with existing county vendors.
“In fact, they indemnify the county, not the other way around,” Harckham said.
Michael Kaplowitz, a Somers Democrat and chairman of the county legislature, said any potential defense offered by Westchester would need to be discussed, then formally approved by the Board of Legislators. He called SPI”™s assertion of legal protection “an understanding that is not a correct understanding.”
Joseph P. Carlucci, SPI”™s attorney who works for the firm Cuddy & Feder L.L.P., told parks committee members the group did not wish to change the terms of its agreement but specifically was looking for legal assurances in the event they were named in a lawsuit before the group assumed management of the park. SPI formed specifically for the purposes of seeking to operate Playland and it has been scrutinized by some critics about its ability to raise capital prior to having a revenue stream in place.
Legislators countered Carlucci”™s statements, though, noting that in the letter to the county SPI”™s president had said the group expected legal protection during the approval process and during implementation of its improvement plan.
SPI has drawn criticism for several polarizing sections of its plan, notably one in which the nonprofit proposes an 82,500-square-foot building to house athletic fields. Neighbors of the park and other county residents have said the field house would be out of character with the aesthetics of the neighborhood, would encroach on existing parking and negatively affect traffic in the area.
The city of Rye, where Playland is located, is asserting its authority over any proposed construction, though Westchester said that because it is county-owned property the county has zoning jurisdiction. Some feel that standoff could lead to litigation.
The SPI deal already has two legal challenges underway, both from Yonkers Legislator Ken Jenkins, a Democrat. He challenged the initial agreement with the park, which received approval from the three-member county Board of Acquisition and Contract, but not the legislature. Jenkins said the agreement constituted a lease and therefore needed legislative approval, but a judge ruled against Jenkins and that matter is now on appeal. Jenkins is also suing to invalidate the agreement on the grounds it is for 10 years, when county law says any deal longer than five years needs approval from the county Board of Legislators.
In an interview with the Business Journal, Jenkins said he saw “no circumstances” that the county should legally represent SPI.
“Certainly, the administration could propose a contract to the (board) that would include the county representing the group, but that would raise the question, why would we need SPI at all,” Jenkins said. “That would point towards the solution of entering an agreement with an amusement operator directly, have the amusement operator invest $25 million and pay the county a fee.”
Two vendors, Standard Amusements and Central Amusements, both remain interested in taking over management of the park. Legislator Catherine Parker, a Rye Democrat, withdrew her support from SPI after having initially supported the plan.
“It”™s time to hear more about their proposals, both of which put more emphasis on Playland”™s amusement park with respect to its great history,” she said.
