A state Supreme Court judge voided a 2007 change to Harrison”™s zoning code, ordering the town to issue permits to a developer who wants to build three two-family homes on Franklin Avenue.
The town will appeal at least part of the decision, which may have ramifications on two separate civil suits from developer Marc Castaldi. Castaldi is seeking loss of income and punitive damages from the officials who changed the code in 2007 to prohibit construction of two-family homes on Franklin Avenue.
Joseph Messina, the Mamaroneck attorney representing Castaldi, said he felt appealing the decision would only increase the amount of a monetary settlement for a case that”™s dragged on for seven years and counting.
“I certainly think they have a right to appeal, but having reviewed the decision and the situation I don”™t see where they”™re going with it,” he said. “The only thing I see coming from an appeal is the bleeding doesn”™t stop.”
In 2007, Castaldi subdivided two lots on the street into three 50-by-100-foot lots where he intended to build two-family houses to offer for rent. Castaldi knocked down the single-family homes at the site anticipating approval of his plans, which were in line with town zoning codes at the time.
Franklin Avenue was at the time designated a two-family zone, but town government in August voted to change the area to a one-family zone amid an outcry from neighbors who felt the new homes would overcrowd the street and bring traffic and parking problems. Residents in the neighborhood who were surveyed by the town by and large supported the rezoning. Many of those who wanted the change lived in two-family homes themselves, and they were notified by town officials changing the code meant that they would need variances for any work done at their homes, which would become “nonconforming.”
Castaldi looked at the timing of the change, coming just three months before a town election, as a way for elected officials including then-Mayor Steve Malfitano to garner re-election votes. “I knew it was politically motivated, it was politicians playing games with people”™s lives,” he said. “It was so blatant and so wrong I just could not accept that.”
State Supreme Court Justice William J. Giacomo in a March 24 ruling said that the rezoning was approved before the town had complied with the terms of the state”™s Environmental Quality Review Act, filing an environmental assessment form after the amendment – when by law it should have been reviewed prior to any code change. The ruling said Harrison didn”™t comply with requirements for informing bordering communities and posting notice of a public hearing on the matter 10 days in advance (the judge said a notice was printed in The Journal News seven days ahead of the Sept. 20, 2007, public hearing).
Castaldi told the Business Journal that he believes Giacomo”™s ruling could serve as a basis for his two civil actions against town officials. He has a federal action in progress against former mayor Malfitano and a state action against other elected members of the town board as well as the town building inspector. He said all told he is seeking loss of income on the six rental units, maintenance costs, attorney fees and damages.
Frank P. Allegretti, attorney for the town, said under legal immunity provisions he would seek a procedural dismissal of those civil lawsuits based on municipal laws that say officials can”™t be found liable when performing a function for the municipality. He said the state proceeding, which has been adjourned twice, would resume in a week”™s time.
“We”™re confident we”™re going to prevail in trial,” he said.
In response to the most recent ruling, Allegretti said the town would appeal at least one aspect of the decision: the judge”™s order to issue permits. Allegretti noted that Castaldi had not yet gone through the planning board process and applied for construction permits, so he believed at least that aspect should be looked at again. The attorney also said in the original subdivision application that Castaldi said he was not tearing down the house on the property but then did exactly that. Allegretti said that meant he would need to reapply for the subdivision.
Allegretti also shook off accusations that the town board had rushed to rezone, saying elected officials took “extraordinary steps” prior to the rezoning including formally polling affected residents and holding a public hearing.
“The reality is that our town board has a duty to listen to concerns, neighbor concerns and concerns of different parts of the town,” he said. “This isn”™t the first time they rezoned an area of town based on concerns of residents. ”¦ It was a board”™s reaction to the concerns of the community.”
Castaldi hasn”™t specified a figure for what he is seeking for loss of income. Allegretti said it would be difficult to determine a figure based on the real estate market crisis that hit bottom in 2008 and has still not fully recovered.