Weigh In: The Pros and Cons of the MBYC Settlement

The article below was written by Sandra Larriva, Patch Staff and Published September 10, 2010 in Larchmont Patch

Did it happen too fast? Will it hurt the harbor? Haven't we paid enough in taxes? Those are some of your questions.

Tuesday's approval of an $825,000 settlement to end all litigation between the Village of Mamaroneck and Mamaroneck Beach and Yacht Club has elicited numerous reactions.

Some residents spoke in favor of the agreement, saying that the six-year battle has already cost the tax payers too much, that the issue affects a "small amount of people," mainly the Shore Acres Property Owners Association (SAPOA), and that residents don't want another multimillion dollar settlement, as was the case in the Westchester Day School lawsuit. Yet, a bigger number of residents have expressed shock at the way the matter was handled and concern about what the settlement will mean for the harbor and the village in general.

So let's review some of the pros and the cons as presented by village officials and residents:

Pro #1: It brings a year-long litigation and a month-long negotiation to a close, and saves the village money

According to a statement issued by Mayor Norman Rosenblum, as of Aug. 1 the village spent $349,000.75 for outside attorneys in the cases concerning MBYC. Pending invoices from counsel "could near (or exceed) $50,000." If the battle had gone on, the village could have had to pay an additional $100,000 in legal fees per claim "before the insurance carrier would have paid for our defense," and Article 78 claims would not be covered by the insurance company. Damage claims could have totaled more than $30 million, he said.

"This settlement results in essentially a no cash outlay on the part of the Village," except for the $34,500 tax refund, Rosenblum said. (The Tax Certiorari Settlement will be voted on at the Sept. 13 Board of Trustees meeting.)

Pro #2: The village had little chances to win this battle

Prior court decisions not in favor of the village could have affected future decisions, according to Rosenblum.

In fact, a few years back, the State Supreme Court held that the Planning Board was prolonging the club's application because of SAPOA's opposition to the plan, and gave them 30 days to review it. In turn, the board conducted an Environmental Impact Study and allowed MBYC to build 12 seasonal housing units as part of the clubhouse. The club appealed that determination, and this year, the Supreme Court upheld the club's proposal to build 32 seasonal residences in a decision harshly critical of the village planning board. The village was planning to appeal this.

The club's motion to get approval for the original site plan by default, however, was dismissed in the village's favor in September 2009.

Con #1: The boards are being "handcuffed" by the document

"The settlement basically took away all of the powers of the Planning Board," said Dan Natchez, president of the Shore Acres Property Owners Association and former Board of Trustees member. "Half of it is very specific as to everything that they must approve."

The document defines the unit's square footage, location, use and length of the season during which it can be used (from April to November). "The only thing they didn't decide is the wallpaper. "

The document also states that if the Planning Board does not approve the application by Nov. 30, the club can annul the stipulation. "The average time for a simple project is about over 60 days," said Natchez, explaining that this could result in a cursory review.

Planning Board Chair Robert Galvin, however, said the Planning Board "has full responsibility on site plan specifics. Further, the settlement does not require that the Planning Board approve anything, only that we consider an application as part of the site plan review process."

Regarding the Nov. 30 deadline, Galvin said the board "has had a significant past experience with the site and a large amount of work has been completed," and expects a full site plan review "within 2+ months."

Con #2: The development plans undermine the LWRP

In 1984, the village adopted a Local Waterfront Revitalization Program (LWRP) aimed at preserving the coastal zone. Natchez, who was involved in the creation of the LWRP, said it "was created to prevent the shoreline from being taken over by residential uses and to protect the recreation marinas and boatyards and clubs." The settlement, he added, "shatters" the LWRP.

When the village decided to appeal the court's latest decision upholding the club's proposal to build 32 units, Steve Silverberg, the attorney representing the village, said the judge overlooked a letter from the New York State Department of State that determined the club's proposal was inconsistent with the village's LWRP.

"This settlement throws the appeal out the window," said Natchez.

Rosenblum stated that while he does not agree with the latest court decision, the 23 units demonstrate "a potential middle-ground" in a situation where the club could have asked for more.

In the past, Rosenblum said, the courts have ruled that the club "must be governed by the zoning law in effect at the time of their application," which "had no limit to the number of seasonal units."

"The Marine Zone law has since been amended and future projects much comply with the limited scope permitted under the existing law," Rosenblum said.

Con #3: The club will continue to "break the rules" after the settlement

Shore Acres residents have expressed concern over how the village will make sure that the club plays according to the rules when, they say, it has not obtained the appropriate permits for its projects. Earlier this year, residents claimed that through an application for storm repairs, the club was trying to get approval for its entire marina, which was not built as originally approved by the village. (Years ago, the club obtained a license from the state that allows a specific number of docks and pilings, but does not indicate where these should be placed. Over the years, the marina's configuration has changed.)

Village Attorney Christie Derrico said that while she was aware of these claims, she would neither deny them nor comment because they are not a part of the lawsuit.

Con #4: The public was not given enough time to process the information and comment

Many residents, including those who spoke at the work session when the settlement was voted on, have asked why the processed was "rushed." For more info on this, click here. Some, including Trustee John Hofstetter, have asked why the exhibits that were part of the settlement were not read to the public or given to the board before the vote.

According to Rosenblum, "the Stipulation of Settlement was the manifestation of the countless hours of executive sessions that took place between the attorneys for the Village of Mamaroneck and the Board of Trustees. Throughout these discussions, a living document had been created which indicated the terms and conditions required by the village board in order to reach settlement. These terms were discussed, contributed to and debated by the entire Board of Trustees on countless occasions, ad nauseum."

The exhibits, according to Derrico, included a) the description of the property, a matter of public record, b) a Department of Environmental Conservation consent order, previously given to the board and also a matter of public record, 3) the plan, which was presented to the board during executive session on Tuesday, and versions of which were previously reviewed, 4) the general release, which was read by the mayor, 5) the stipulation of discontinuances, which would potentially be executed if the matter is resolved, and f) a notice of violation from 2008, a matter of public record and something the settlement would clear.

"The only thing attached that was a drafted legal document were the plans, which were shown, the general release, which was given, and the stipulation of discontinuances, which was a pro forma document," Derrico said.

Editor's note: Some individuals who have been contacted for comment have not yet responded. This story will be updated as new information becomes available.