By Katie Bisaro
The ongoing dispute over Yesterdays restaurant owner John Christison’s desire to build a new, larger establishment has been delayed once again as the Village of Warwick Zoning Board of Appeals (ZBA) did not render a decision regarding the need for an extension to the developer’s site plan approval at a meeting on Tues., Feb. 16.
Yesterdays is currently located on Main St. in the Village of Warwick. In May of 2018, Christison received site plan approval to build a new restaurant to be located at 16 Elm St., next to the Warwick Car Wash and on a site previously used as a car lot for Country Chevy. Residents whose homes surround the new site, primarily on West St. and Van Buren St., have vehemently opposed the project since its inception.
Upon site plan approval from the Village of Warwick Planning Board, a building permit for the project was issued in August 2018 and construction began in October 2018. So far, the site has been graded, and the foundation, first level deck and drains surrounding the foundation have been installed.
In the meantime, an Article 78 proceeding was filed by residents, led by Patrick Gallagher of West St., to appeal the Planning Board’s decision and approval. The first filing was dismissed due to a technicality – the Article 78 named Christison as the owner of the property when in fact he has not yet purchased the property pending the outcome of the lawsuit.
The residents resubmitted the paperwork listing the proper owners – Frank Petrucci, Lynn Crane and Glenn Petrucci – only to have that dismissed as well as the 30-day statute of limitations had run out. Yet another appeal by residents was filed in the Appellate Division.
Construction had been halted on the project as Christison awaited the decision from the Appellate Court. Christison stated that the bank he sought a loan from would not lend him the money unless the courts ruled in his favor. After the appeal sat in the appellate division for two years, it was finally decided in December 2020 in Christison’s favor.
According to Village of Warwick Code, construction must begin within 12 months of site plan approval and must be completed within 24 months without an extension to the approval. Prior to the two-year expiration of the site plan approval, Christison reached out to Village of Warwick Building Inspector, Boris Rudzinski, regarding an extension to the site plan approval, claiming he could not complete the construction within the 24-month time frame due to the ongoing litigation.
Rudzinski responded to Christison in a three-page letter on May 12, 2020, copying, via email, Village of Warwick Mayor Michael Newhard and the Board of Trustees; Chair of the Village Planning Board James Patterson and Planning Board Members; Planning Board Attorney Robert Dickover; and Village Attorney Stephen Gaba.
Rudzinski’s letter outlined the Village Code as it pertained to this matter (Sections 145-98 and 145-146) and noted that “neither of these Code sections makes any provision for tolling [suspending] of the time prescribed due to extenuating circumstances such as pending litigation.” However, he also wrote, “the prevailing rule is that the time limit for a property owner to act upon a land use approval is tolled by the filing of a petition for judicial review of the permit.”
Rudzinski determined that Christison had satisfied the 12-month commencement of construction provision by the work already completed, and further determined that the 24-month provision for completion of work without extensions of the site plan approval and building permit “have been tolled as a matter of law by virtue of the date of filing of the said lawsuit and terminating on the date of entry of the order finally terminating the litigation.” He additionally commented that Executive Orders issued by Governor Andrew Cuomo regarding the prohibition of “non-essential construction activities” (due to Covid-19) also added to the “toll of the time for completion of construction.”
It was the Rudzinski’s interpretation of the Village Code with regards to the site plan approval and building permit lapsing without extensions, citing “pending litigation,” that brought both parties to the Village of Warwick Zoning Board of Appeals (ZBA) public hearing on Tues., Feb. 16. Gallagher objected to Rudzinski’s decision as an incorrect interpretation of the Village code.
Attorneys for both parties had submitted briefs on the matter to the ZBA and spent time at the public hearing outlining each of their client’s positions.
Attorney John Cappello, representing Mr. Christison, emphasized that Christison was not a “developer” but a small business owner pursuing his dream to relocate his restaurant to 16 Elm St. and that he is not trying to avoid the law, rather, he is trying to move forward. He also explained that, because Christison cannot self-finance the construction of his new restaurant, he must rely on bank financing. According to Cappello, the bank would not proceed with financing until the appellate court handed down a decision favorable to Christison.
Cappello asked the ZBA to uphold the interpretation and decision of the Building Inspector, or to “acknowledge that the extension was in reliance upon a determination that hasn’t been overturned yet tolled and allow, if deemed necessary, a review by the Planning Board to renew not start over.”
Attorney David Gordon, representing Patrick Gallagher, began with pointing out that the ZBA is bound by the law and the Board’s “only job” is to interpret the law, not “go through a variety of equitable considerations” or to “amend the wrongs that are out there.”
Gordon then outlined why they believe the Building Inspector misinterpreted the Village Code by allowing the deadlines outlined in that code to “toll” and not require extensions to Christison’s site plan approval and building permit. He refuted Cappello’s claims of inequitable application of the code due to the lawsuits.
Gordon stated that Christison and his attorney should have waited 30 days after the original lawsuit was dismissed on a procedural technicality, anticipating that an appeal would be filed and would take time to resolve. The appeal was filed on Sept. 4, 2018 and Christison commenced construction at 16 Elm the following month.
Gordon further claimed that Christison started construction without the financial means to finish in order to claim “vested rights.” The legal definition of vested rights is “a right belonging completely and unconditionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner.”
“Vested rights does not compel you to accept this determination…the Code, not only allows them [developer] to, but actually tells them to, as a remedy, to apply to the Planning Board for site plan approval…for the Planning Board to reassess the project,” Gordon stated.
Public Commentary Cut Short
At the beginning of the hearing, and again before opening the floor to public commentary, ZBA Chairman John Graney reminded those in attendance that the matter before the Board was the Building Inspector’s interpretation of the Village Code regarding the project at 16 Elm St. and to confine their commentary to that topic.
Several residents asked to speak but were cut off as their comments were more about the project itself and their objections to that and work already started rather than addressing the specific matter before the ZBA.
ZBA Attorney Weighs In
After the Public Hearing was closed, ZBA Attorney Robert Fink, who had reviewed the matter himself, outlined his opinion to the Board. He began by emphasizing that he has “no feelings” on the matter.
“I understand how the neighbors feel, I understand how the builder feels…all I look at is the law and it’s what I try to tell you. So, when I go through, I think it’s going to look as though I don’t like 16 Elm St…I just don’t think 16 Elm St. has a viable case,” Fink stated.
He reminded the Board that the initial Article 78 proceeding had been dismissed on a technicality, not on its merits, on whether it was a good or bad project. In his opinion the Building Inspector “took it upon himself to interpret the code and to allow certain things to continue.”
Fink also dismissed the idea that the pending lawsuits “tolled” the timeframe during which construction was to be completed on the project, stating, “there’s no authority that I have found that says that litigation tolls the running of any statute.”
Fink also addressed the claim that Christison went ahead with the project to protect his vested rights, saying that matter would not be before the ZBA but before the Planning Board if Christison went back for site plan approval and was denied. At that time, Christison could claim vested rights.
Finally, Fink asked the ZBA Board to review not only his document but those submitted by the two attorneys before rendering a decision. The ZBA will meet again next month to deliberate the matter in order to come to a decision. No public commentary will be allowed at that meeting.
Next Village ZBA Meeting
The next meeting of the Village Zoning Board of Appeals is scheduled to take place on Tues., Mar. 16 at 7 p.m. at Warwick Town Hall, 132 Kings Hwy., Warwick.
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