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A.Thomas Levin Quoted in The Island Now, "Judge Rejects Bid to Halt Developments"

Jan 30, 2014Local Government and Land UseProfessional Responsibility

Media Source: The Island Now


East Hills environmental activist Richard Brummel failed this week in his attempt to appeal a Nassau Supreme Court judge’s recent ruling lifting a halt to two projects in the Village of North Hills, including RXR Realty’s construction of a 244-unit condominium complex.

Brummel said a judge in state Supreme Court Appellate Court in Brooklyn rejected his attempt on Monday to reinstate a temporary restraining order Nassau County Supreme Court Judge Michele Woodard had lifted on the projects, including RXR’s condo and X-Cell III Realty’s plans to erect office buildings near the RXR property.

But Brummel has said he will continue to pursue the case before Woodard.

“The case itself will go ahead,” Brummel said. “There’s 10 acres of forest land there that’s beautiful.”

In her Jan. 21 ruling overturning a temporary restraining order on the projects, Woodard said most of the forest Brummel is seeking to preserve on the 17-acre site where RXR Realty, operating as Midtown North Hills LLC, is erecting the condominium complex, has already been cleared. She also denied Brummel’s request for a preliminary injunction against North Hills and the developers and his request to stay her ruling until he could file an appeal.

Woodard also said Brummel lacked standing since he doesn’t live near the site and pointed out that environmental concerns were addressed in a study done in 2006.

North Hills village attorney Thomas Levinsaid last week he and the other defense attorneys will seek to stop Brummel’s lawsuit based on the lack of standing cited by Woodard. Levin said the next court date is Feb. 20.

“We are going to move to dismiss his case and so are the other defendants,” Levin said. “He has no standing and he has statutory problems. He’s too late, he’s the wrong plaintiff and the documentary evidence proves he’s wrong.”

Levin said the time is long past for Brummel to challenge the 2006 environmental study. He said Brummel can only challenge the North Hills village board’s Dec. 28 approval of final amendments to the RXR plan.

“lf [Brummel] continues to pursue these frivolous lawsuits, someone will impose sanctions on him,” Village of North Hills Mayor Marvin Natiss said.

Attempts to reach Anthony Guardino, a lawyer representing RXR, and Kathleen Dickson, a lawyer representing X-Cell, were unavailing.

Judge Dana Winslow issued the temporary restraining order on Jan. 4 based on a petition filed by Brummel, which directed the Village of North Hills to issue a stop work order to Midtown North Hills LLC to halt construction on the condo project and X-Cell’s plan to build two 92,500 square foot office complexes in Grace Forest.

Brummel said his grounds for the suit are the same as those he cited in securing the temporary restraining order.

North Hills officials, he said, “didn’t make any good faith effort to protect the environment,” by not requiring another environmental study before giving recent approval to RXR’s amended plans. He said the prior environmental study was “inadequate.” Brummel also said the incentive zoning change North Hills implemented didn’t consider the impact of permitting multiple dwellings in an area formerly zoned for half-acre house lots.

In Woodard’s courtroom, Guardino argued that RXR has the right to build on the property based on the prior approvals granted in 2006 and 2009. He said RXR must begin construction on the condos by April 20 or risk forfeiting the $100 million construction loan it has secured.

“If we miss that deadline, it jeopardizes the financing and the project,” Guardino said. “This is a $305 million project that’s going to bring many jobs.”

He said RXR would sustain $400,000 in damages for each month the project is delayed.

When Woodard asked Brummel asked what success he was looking for in the case, he said “greater mitigation in this project to leave more of this [condo] project in its natural state.”

He said despite the “irretrievably destroyed” forest being bulldozed on the RXR construction site, the subsoil is still fertile and could “come back.” He said the 10 acres of the adjacent X-Cell property is still intact

“The wildlife there relies on the trees and the cover and the environment that is there,” Brummel said.

Brummel has said 16 species are listed, including the Eastern box turtle, the Eastern hognose snake, the Eastern spadefoot toad, the Red-header woodpecker, the hoary bat, and the Whip-poor-will.

But Guardino said trees on the RXR site have been cleared for construction and questioned Brummel’s argument for protecting the wildlife.

“There’s conjecture that these animals are living there. No one’s ever seen the animals there,” Guardino said.

He said no one challenged the Village of North Hills site plan approvals in 2006 or 2009. He also said consultants retained by RXR saw “minor changes” in 2013 that didn’t justify another environmental review Brummel called for now.

Guardino said the North Hills Village Board did take the “requisite hard look” before declaring the RXR project would not have a negative impact on the environment before it approved RXR’s amended plans at a meeting on Dec. 18.

Natiss refused to let Brummel comment at that meeting, saying he knew his objections from a prior public hearing.

Levin said RXR’s amended plans concerned the physical configuration of the condo buildings.

“None of the aspects in which this project was changed have anything to do with the concerns Mr. Brummel raises,” he said.

RXR Realty, which touts itself as the leading real estate owner, manager and developer in the tri-state region on its website, has sought to develop the North Hills property since an affiliate bought the previous owner, North Hills LLC, in 2007.

RXR paid the Village of North Hills $21 million in 2007 in lieu of amenities on the condominium project.

Natiss said the economic downturn had stalled the RXR plan that the village originally approved for construction.

RXR is currently proceeding after receiving village support for a payment in lieu of taxes proposal being considered by the Nassau County Industrial Development Agency on 60 of the first 124 units that RXR intends to build in the project’s first phase. The 60 units will initially be leased.

Natiss had adamantly opposed a 20-year PILOT with $4.6 million in property tax breaks that RXR had previously proposed.

At a recent IDA hearing, Natiss said that although he was still “philosophically opposed” to IDA tax breaks on rental property, he felt he had to “compromise” his principles “so they can get this built.”

RXR recently received IDA approval for $3.6 million in tax breaks on sales taxes and mortgage tax tied to the 60 units to be leased.

Administrators representing the Herricks and Great Neck school districts, which opposed previous PILOTs for RXR and a second development in North Hills, have said they are comfortable with the compromise on the latest PILOT after the recent IDA hearing.