Still No Window Coverings: Someone is Not Telling the Truth on 5 Anderson

On Tuesday, The Mayor said on WVOX:

“we are told that the window coverings are in the process of being fabricated presently and that actual installation is going to begin very shortly”

On Wednesday, Talk of the Sound reported that workers Cappelli Enterprises were at 5 Anderson measuring the windows.

Last week, at the Municipal Arts Commission Meeting, Cappelli representative Joe Apicella said that the window coverings were designed and fabricated “in house”.

In December 2009, Joe Apicella told the City Council “if you know anything about the Cappelli organization, you know that we move very fast”.

Last night members of the Municipal Arts Commission confirmed that it was their understanding from what Joe Apicella told them last week that the window coverings would go up very quickly — they all said they expected the window coverings to go up the next day (last Thursday) because of the deadline, that the MAC had previously approved the same plans in May of 2009, that with Apicella at the meeting was the graphic designer who Apicella described as having complete discretion in creating the designs, that Apicella said Cappelli fabricated the window coverings in-house.

So, here’s a question for the Mayor and the Commissioner of Development — why is Cappelli having the windows measured on Wednesday when the Mayor is telling Bob Marrone on-air at WVOX that Michael Freimuth told him that Capelli Enterprises had told him that window coverings are “in the process of being fabricated presently”?

How would Cappelli fabricate something today that they intended to measure tomorrow?

If Cappelli is fabricating window coverings that are somewhere between 4 and 6 feet tall and wrap around about 200 feet of building how long does that really take? The designs would take no time at all since Cappelli said they were already completed — they are what was approved in May 2009 and again in July 2010.

If the window coverings were being made as the Mayor spoke — as he told Bob Marrone — then whey were they not installed later that day, or the next day, or today?

The answer is rather obvious, right? As of Wednesday morning, 24 hours after the Mayor appeared on the radio, Capelli had not even measured the windows let along begun fabricating the window coverings. The entire thing is one big farce.

There has supposedly been an issue of access since the MOU Extension was approved by Council on June 15th. What access is required to measure the windows?

None.

What access is required to clean and prep the windows?

None.

What access is required to mount the window coverings on the exterior of the building?

None — except the one corner retail space which had a lock on it that was removed the day after the MAC meeting last week.

Also discussed at the MAC meeting last week was concerns about specific elements in the design Cappelli presented to them — the same ones they saw in May 2009 — and whether the MAC members might exchange emails and make last minute changes to the design. Last night, the MAC members confirmed that there had been no such discussions and that it was their expectation that Cappelli was proceeding with the designs as presented in 2009.

So, why does all of this matter?

On WVOX on Tuesday, the Mayor went further and said “based on this (emphasis added) the Commissioner of Development concluded that the public interest would best be served by letting the process that is already very close to the conclusion run to its conclusion and we’ll actually get the physical improvement we’re looking for and so he has deemed the terms of the MOU to be satisfied provided those installations actually go up within the reasonable time frame that we anticipate.”

There are two major problems with this.

1. The MOU Extension passed by the Council does not give the Commissioner of Development any such discretion. The only discretion given to Mr. Freimuth was as to whether, as of the deadline, the conditions had been met. As of 7/31, he then had the option to certify that the condition had been met based on what had been done up until that time. So, he could have accepted as sufficient the work that was done to bring the building up to code (fixing windows, clearing weeds, removing plywood on the main door, etc.).

2. By allowing Cappelli to continue as if the MOU was still in effect the Commissioner of Development has, by default, certified that the conditions of the MOU were met on 7/31. As a result, Cappelli is currently under no obligation to do any further work on the building to satisfy this condition of the MOU. It may well turn out that Cappelli does eventually put up the window coverings but if you go back to the statements made by Barry Fertel, echoed by Marianne Sussman, you will hear Mr. Fertel repeatedly stress the importance of finally getting in right an affirmative obligation to put up the window coverings to address the blighted appearance of the building. Mr. Freimuth has now tossed that obligation away and opened up the City to litigation — precisely the opposite of what the Democrats claimed to have sought in voting for the MOU. Recall, that the MOU indemnifies the City against lawsuits from Cappelli related to LeCount Square for everything that happened BEFORE the MOU was passed on June 15th so these new events are all open to litigation.

In other words, by allowing Cappelli to continue to operate as if the MOU were still in place, the Development Commissioner has decreased the likelihood that the window coverings will be installed not increased it as the Mayor as claimed. Again, it may be that the window coverings are, some day, installed but the odds of that happening are now less than they were before.

There is an entirely false premise to the Mayor’s logic. The Mayor contends that if the Development Commissioner were to find Cappelli is not in compliance with the terms of the MOU (which he is not) then the window coverings will never be installed. Wrong. With the MOU terminated, the building reverts to the control of the owners of the building and they will be obligated under municipal law to install window coverings. It is a measure of how many ways in which the City is accommodating Capelli that back in June Barry Fertel made it sound like a major accomplishment that the Council would pass an MOU extension that required Cappelli to comply with a law already on the books.

The passing of Jim Stowe add a significant wrinkle to all of this. Up until yesterday, the Mayor, the City Manager and the Commissioner of Development knew that whatever grace period they allowed Cappelli, legal or not, in keeping with the MOU or not, they could always go back to Council and get a 4-3 vote to make it right. This is precisely the sort of thing that was mentioned in the OSC audit of the NRIDA — break the rules and then absolve yourselves on a party line vote. With the Council now deadlocked at 3-3, this can only happen if a Republican (all of whom voted against the extension) flip and join the Democrats. While this is New Rochelle and anything can happen it would sound up howls of anguish among their supporters in their districts which are overwhelmingly opposed to further extensions the LeCount Square MOU.

Much more on this later.