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Memoranda of 'Misunderstanding' Fuel Split Over Dover Knolls Project
04.06.2007
Oren Phillips
Staff Reporter Harlem Valley Times
A memorandum of understanding between the Town of Dover and the builders of the proposed Dover Knolls project led to differences of opinion, not understanding, over wording on versions presented by both parties.
A memorandum of understanding (MOU) is a legal document that describes an agreement between parties and defines their working relationship.
Both the town and the Benjamin Companies, the developers, submitted their own versions of memoranda of understanding to provide the framework of discussion for future meetings.
The developers have been presenting their application to the town board for approval for almost four years.
At the March 28 meeting, Supervisor Jill Way said the board received the Benjamin Companies' version of the memorandum. She said the town board thought it contained a number of misrepresentations and "cast the town board in a sinister light."
The board then presented the representatives from the Benjamins with its own draft memorandum.
Way said in the MOU, the town requires the group to remedy outstanding violations on the site, along with making payments to the escrow accounts of the town board and planning boards that are owed.
The company must also refrain from engaging in any development on the site without the required local, state, and federal permits.
According to the submitted MOU, Dover will also continue to work with the applicants, recirculate the amended application under the State Environmental Quality Review Act (SEQRA) and hold public scoping sessions with the revised application for public comment.
The town will also participate in discussions with Metro North and the state Department of Transportation regarding issues relevant to the proposed project.
"Dover Knolls and the town agree to meet regularly to confer about the processing of the amended applications. Should Dover Knolls and the Town deem it necessary, the parties to this MOU may retain a mediator for the purpose of participating in non-binding mediation. Dover Knolls and the Town agree that they will share the costs of the mediator equally," stated the Dover MOU.
Michael Zarin, special counsel to the Benjamin Companies, said a lot of progress was made when both sides worked together, and that his clients have not resorted to name-calling and have been working to come to an agreement on a project that works for both sides.
"We were disappointed in February when we received a letter (from the town) after five months of working together, that in our opinion, rejected the work that was done," Zarin said, claiming the town wanted to go back to other planning versions presented earlier.
"We appreciate you considered our memorandum of understanding," he said.
Zarin then brought up a number of binders containing previous memoranda from others projects and said they were used to put both sides on the same page and outline procedures.
"The supervisor didn't read our memorandum to the public, and it's a very basic agreement. It's only about four pages and most of these documents are about 40 pages," Zarin said, adding that the company and the town agree on basic issues and need to stop the delays.
"The Benjamins have spent $16 million to date on the projects and paid $300,000 in consultant fees to the town. It's disheartening to get your memorandum of understanding with the first portion of the document talking about escrow accounts. We have never shirked our responsibilities on escrows and paid them in a timely manner," he said.
Zarin also wrote a letter that was submitted to the board along with Dover Knolls' draft MOU that outlined the Benjamin Companies' main concerns.
"Once again, it is not in anyone's best interest to spend substantial time, money and effort preparing a DEIS (Draft Environmental Impact Statement) based on a plan that Dover Knolls firmly believes has demonstrated will fail, or a plan that the town has already rejected. We need to reach a conceptual agreement on the vision for the site. Once there is agreement on a vision, we would respectfully submit that an MOU would be the best mechanism for memorializing our respective commitment to work in good faith to advance that vision," Zarin wrote in the letter.
He said the company has not done any development on the property or made any money from it. Zarin emphasized the goal is to move the project forward and make everyone happy, and that the town's memorandum does not accomplish that goal.
"Before we begin again, lets agree to a general development plan that could be modified, or be rejected, in whole or part, at any time," he said.
"We are not asking for approval right now," Zarin said.
The attorney said the planners made all the changes the town asked for in its conceptual drawings and created a variety of housing and retail areas, and the town said that, conceptually, both sides were on the same page.
Zarin added the town must change the 1999 zoning laws for any type of construction to proceed.
"We looked at all the changes you asked us to do, and then we were told we had to conform to the 1999 zoning. That's not how it works, you have to be flexible on zoning. We need to work out our differences to move forward," Zarin said.
Zarin also addressed this issue in his letter to the board.
"It does not make sense for the town board to cling to unrealistic and outdated zoning requirements. The town has invoked repeatedly in its statements that Dover Knolls is acting improperly by not studying a proposed action, which complies with the current MC Overlay Zoning and/or scope," wrote Zarin.
Dover responds
Town Planner Joel Russell said there have been a number of misunderstandings between the two sides and that the memorandum by the town was created to try to fix them.
"Some signals got crossed and we haven't received much information on the economic impacts this will have," Russell said.
"There is a list of things that are needed to be done for the PADS (Primary Alternative Development Scenario). If you came to us with the current plan at the start of the process, it would have been different. We understand that the zoning might have to bend," he said.
Town Attorney Shannon Martin LaFrance said the letter sent to the Benjamin Companies in February stated that the town did not totally agree on the new plan, but that it was going in the right direction. There were still concerns over the environment and the reduced commercial square footage.
"There are certainly points of agreement and disagreement, but they won't be solved this evening," said Way.
"We agree that progress has been made from the first to the second application, but we disagree on steep slope construction," she said.
Way said the town would look at the latest plan and re-open the newest rendition to public opinion.
Zarin said the Benjamins are looking for certain things in a MOU for it to work for them.
"If we get a memorandum of understanding where we are conceptually on the same page and that the town likes and supports the plan and considers re-zoning," said Zarin.
"You and I have different impressions of what went on tonight," said Way.
Zarin went on to reiterate that the letter sent by the town board in February regarding the latest proposal shocked the developers, because the builders thought both sides were mostly in agreement.
"I don't share Mr. Zarin's view and the letter can be seen on the town Web site," said the supervisor.
Russell added he does not want to be misquoted, and although the town gave some indications of a favorable reaction to the plan, it did not agree to anything and is not promising to change the zoning.
Councilman Richard Hawthorne said he was present at all the meetings between the Benjamins and the town, and at no time did any board members state they liked the design.
"We said 'You are getting closer,' but there is still along way to go," Hawthorne said.
"We found some things that were favorable and not favorable, but didn't say we liked the plan," he said.
Way said there would be public forums on the revised application to get public comment to keep the project moving.
After the meeting, the supervisor said the ball was in the Benjamin Companies' court and it was up to them to decide if they want to move forward on the construction without a MOU, but according to town records the group does owe money to the escrow accounts.
Both sides agreed to continue to work together to have the project progress.
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