Court: Harrison in violation with zoning law

By PHIL NOBILE
A Harrison zoning law that sparked a legal battle for seven years between a local contractor and town officials has been found in violation of multiple laws by the state Supreme Court, making the law null and void and paving the way for a potentially significant payout by the town.

The state Supreme Court has found Harrison to be in violation of state municipal law when the town created a 2007 local law that stopped further construction on this lot on Franklin Avenue.  Photo/Phil Nobile

The state Supreme Court has found Harrison to be in violation of state municipal law when the town created a 2007 local law that stopped further construction on this lot on Franklin Avenue.
Photo/Phil Nobile

The decision, rendered by state Supreme Court Justice William Giacomo, requires town officials to allow contractor Marc Castaldi to build on his properties on Franklin Avenue and continue his plans to develop two-family homes.

The 2007 local law was passed to appease concerns from neighbors of the properties by re-zoning the area from a two-family designation to a single-family designation, making Castaldi’s plan to build three new two-family homes illegal.

“The court found that the town did everything wrong,” Joseph Messina, an attorney representing Castaldi, said. “We feel good about the decision, and this can’t just continue to go on and on.”

In the March 24 decision obtained by the Harrison Review, Local Law #4 was found to violate the state’s general municipal law, town law and environmental review act—which requires an environmental assessment stating potential impacts on any projects by a local government—because of the process by which it was implemented.

According to Town Attorney Frank Allegretti, the law amending the zoning of the area was created for a number of reasons, including stopping Castaldi’s project.

“This was done in response to neighborhood concerns of inadequate parking, a tight street and [Castaldi’s] project,” Allegretti said, adding the town will file a notice of appeal on the decision. “There was a cumulative effect of what the issues in the neighborhood were.”

Messina said he believed the law had the sole intention of stopping his client’s project, despite Allegretti’s claims.

“I believe it was done specifically to the project and done in haste and not done correctly at all,” he said.

Cited in the lawsuit is Stephen Malfitano, a current Republican town councilman who was mayor during the adoption of the law, Republican Councilman Joseph Cannella, Planning Board Chairman Thomas Heaslip and Building Inspector Robert FitzSimmons. Former councilmen Robert Paladino, a Democrat, Thomas Scappaticci, a Republican, and Pat Vetere, a Democrat, were also named.

The town also faces the possibility of awarding undisclosed damages to Castaldi, with two separate civil lawsuits before the federal and state courts pending. Messina declined to estimate the potential damages, but described them as “quite significant.”

“[Castaldi] is looking for significant monetary damages, and we dispute the fact that he’s entitled to those,” Allegretti said.

Castaldi purchased the 24 and 30 Franklin Ave. properties in 2003 and 2006, dividing one of the lots and creating three equal-sized properties.

This was all in accordance with the designated zoning of the area at the time, which was B-Two Family, and in accordance with zoning requirements that each of the three lots would be 50 feet by 100 feet.

As Castaldi began the process of demolishing the two older homes on his purchased properties, public outcry began against the project, with many neighbors concerned about potential traffic and quality of life issues in the small neighborhood.

Nevertheless, the town’s Planning and Architectural Review boards and Building Department approved the project.

At the Planning Board’s July 24, 2007 meeting, the board granted Castaldi final approval and declared the project wouldn’t have any negative environmental consequences. The Building Department gave demolition permits to Castaldi in late July and September 2007, resulting in the empty lot seen at the property today. On Aug. 14, 2007, the Architectural Review Board approved Castaldi’s proposed structures.

No opposition from town officials or boards was given until the Town Council chose to adopt the disputed law in September 2007, changing the zoning of the area from two-family to one-family residencies only, making Castaldi’s project impossible to continue.

As a result, Castaldi’s application for a building permit, which has already been approved by the Building Department, was denied because of the change in zoning.

The way in which the town adopted the law is what has led to the violation verdict by the state seven years later. According to the state Supreme Court, all zoning actions and amendments affecting property must be referred to the county’s Planning Department for a 30-day review period—an action that must be made before a town makes a zoning amendment final.

The town adopted the law only 19 days after sending the county a notice of the law.

The town also did not complete an environmental assessment form until nearly a month after it adopted the law, which is a violation of the state’s General Municipal Law and of the necessary procedure from SEQRA, the State Environment Quality Review Act.

“The court finds that respondents did not comply, or even substantially comply,” the verdict reads.

In terms of violating the state’s Town law, the ruling says town officials failed to publicly notice the planned law to amend zoning by posting a notice seven days prior to the Sept. 20, 2007, public hearing on the law, as opposed to the required 10 days.

As a result, the town must restore the zoning in the area to its original two-family designation before the law was passed and building permits for Castaldi’s properties must be issued by July 22, 2014.

Messina described the case as the “foundation case” so the separate lawsuits before the federal and state courts for potential damages could continue.

“The important aspect of this verdict is it was the foundation case with the federal court awaiting this decision,” Messina said. “Mr. Castaldi intends to move forward with the building of his homes and proceed with the other cases before the courts regarding damages.”

Going forward, Allegretti advised the town’s lawyer for the case, Joseph Maria, to file a notice of appeal, which will cause an automatic stay on the court’s order.

According to Allegretti, the town will return to the judge and argue Castaldi hasn’t complied with Building Department requirements, saying his proposed houses don’t meet zoning code and the driveways are not configured to zoning requirements prior to the law.

“There were a variety of things that were not adequately addressed in this decision,” Allegretti said. “We’re going to go back to the judge and tell him he may have overlooked some things.”

Messina replied to the town’s decision to file an appeal admitting it was their right, but adding he was unsure on what grounds the appeal could stand.

“It’s in everybody’s best interests to get this resolved, because all we’re doing is increasing the damages as a result,” Messina said. “It’s their legal right to do so, but I’m not quite sure where they’re going with it.”

CONTACT: phil@hometwn.com