New Castle Grants Conifer Permit Extension, Rejects Most Fee Waivers

The developer of the controversial Chappaqua affordable housing project obtained an 18-month extension of its special use permit but failed to convince the New Castle Town Board to waive close to $200,000 in application-related fees.

Conifer Realty was granted the permit extension last Tuesday night by a 4-0 margin that requires them to build the four-story, 28-unit structure on Hunts Place within a year-and-a-half or apply for more time. Town Supervisor Robert Greenstein abstained, undecided whether the extension should be 18 months or for a shorter duration.

Darius Chafizadeh, an attorney representing Conifer, a Rochester-based affordable housing developer, appealed to the board for a 24-month extension, saying that the project is so complicated that two years would be needed to prevent his client from having to return again.

“We’re asking for that because we know how long projects take to get all the building review and get all the work done,” Chafizadeh said. “We thought instead of coming back to you in 18 months we would get it all done in two years.”

It took Conifer about 16 months to receive the necessary variances from the state Board of Review, which regulates fire and safety code requirements, after the former town board granted the original permit in September 2013.

In February, Conifer went to court to contest the interpretation of the town zoning code, arguing that in the case of workforce housing a special permit allows an applicant 25 years to complete the project. It lost the decision but is now appealing; however, it complied with the court’s ruling to file for the permit extension within 20 days.

During periods of verbal jousting last week between Conifer representatives and board members, Greenstein impatiently asked Chafizadeh and Conifer Realty Vice President Andrew Bodewes whether the company has made any progress since receiving its Board of Review approvals in January.

“What exactly have you done?” Greenstein asked. “Besides the Board of Review and filing a lawsuit and your appeal, and besides asking for the fee waivers and things like that, what exactly have you done to comply with the special permit?”

Chafizadeh responded that his client has been working with the Metropolitan Transportation Authority to obtain an easement and a no-build agreement from Metro-North, which is a condition of the permit.

Greenstein then pressed the attorney to find out what the MTA was requiring of Conifer, and later asked if the applicant would withdraw its appeal if it received its extension.

Chafizadeh said he wasn’t in a position to answer those questions, but indicated that the MTA is a large entity that moves at its own pace.

“I think if we get the extension we’d be very happy,” he said. “We’d like to work with the town moving forward.”

The supervisor chided Conifer’s representatives, saying that it expended considerable time and energy on litigation.

“When a judge calls (your argument) absurd I don’t file an appeal so quickly,” Greenstein said.

The board unanimously rejected Conifer’s attempt to have a $152,862 building permit fee and an inspection fee waived. Inspection fees cost 3 percent of the cost of all site work, said Town Attorney Edward Phillips. Site work could cost upwards of $1 million, he said.

Officials agreed to waive fees of $8,329 stemming from the application for the Board of Review variances.

Bodewes said Conifer made the waiver request because a 2011 letter from former supervisor Barbara Gerrard informed the company that the town would waive the fees. However, he acknowledged that the letter was not legally binding.

“Certainly, all we’re asking you to do is what you’d say you’d do,” Bodewes said.

Councilman Adam Brodsky said he would be unable to approve forgoing fees when the developer is already receiving county, state and federal subsidies for the project.

Phillips also said he could find no legal mechanism in town law that would allow officials to waive a building fee for any applicant.

During the discussion several residents spoke on the issue. Chappaqua architect Bill Spade, a project opponent, said the fact that Conifer stands to make a $2 million development fee on the project should have disqualified it from any consideration for fee waivers.

“For them to ask the town to subsidize, as you’re saying, a pretty appropriate word for this project, when they’re due to earn that level of fee it’s absurd to me,” Spade said. “If they are a for-profit company that’s perfectly capable of paying its costs, then they should pay their costs.”