On his radio show today on WVOX, Mayor Noam Bramson confirmed that the City of New Rochelle has given Cappelli Enterprises a new deadline of August 20, 2010 to come into compliance with the MOU Extension approved by the New Rochelle City Council in June, 2010. The actual deadline was July 31, 2010.
SCAN OF LECOUNT SQUARE MOU June 15, 2010
At the time the resolution was passed in June, the Mayor, along with Council Members Barry Fertel and Marianne Sussman, repeatedly stressed (see video below) that a major reason for their supporting an extension of the MOU was the protections afforded the City under a “hold harmless” provision under which Cappelli agreed not to sue the City for anything that happened before the MOU was approved on June 15th. That key provision has now been invalidated and the door is once again open for more threats of litigation by the trigger-happy Cappelli.
Asked by Talk of the Sound to explain the legal basis for granting an extension, Bramson would only says that New Rochelle Corporation Counsel Kathy Gill was “confident” that there was a legal basis for granting an extension without first obtaining approval of the City Council. Bramson declined to explain the basis for Gill’s “confidence”.
Any plans to retroactively obtain that permission were put into jeopardy by the unexpected death of Council Member James Stowe which left the Council deadlocked 3-3. In June, the three Republicans voted against extending the MOU with the four Democrats, including Stowe, voting for the MOU.
Here is an excerpt of the relevant portion of the MOU Extension:
BE IT RESOLVED, that the City Council of the City of New Rochelle hereby authorizes the City Manager to execute a Fourteenth Amended MOU to amend Section 2.2 of the MOU to extend the Exclusivity Date through December 31, 2010, upon the following conditions:
1. By July 31, 2010, exterior improvements shall be made to 5 Anderson Street to the satisfaction of the Department of Development. If such improvements are not made by July 31, 2010, the MOU shall automatically expire.
It is clear that the resolution gave Development Commissioner Michael Freimuth complete discretion to determine whether or not the exterior improvements made to 5 Anderson was satisfactory but that the discretion was to be exercised only based on the status of the building on July 31, 2010. By allowing Cappelli to continue to operate as if the MOU were still in effect, the Department of Development has, de facto, made a determination that the terms were met at that time thus freeing Cappelli from any further obligations regarding this condition of the agreement.
De jure, the terms were not met because under the City Charter the exterior improvements require approval of the Municipal Arts Commission and the Commission only gave approval for a specific proposal and that proposal was not executed by Capelli. Less than half of the proposed window coverings have been installed, as of today. The City is simply ignoring the will of Council, the City Charter and the legal role of the Municipal Arts Commission — making a mockery of all three.
As a result, the City no longer has any legal basis for terminating the MOU based on the first condition of the resolution requiring the completion of exterior improvements to 5 Anderson by July, 31, 2010. If, as the Mayor has now indicated, the City were to seek to terminate the MOU retroactively on August 21, 2010, Cappelli would not only be highly like to sue the City but he would almost certainly win. In short, once the City allowed Cappelli to continue operating under the MOU beyond the July 31st date, the effectively waived the first condition of the MOU Extension and made worthless the second condition.
The third condition requires that by December 31, 2010, Capelli has to demonstrate a “reasonable probability of sale” of the U.S. Postal Office facility on North Avenue. Who makes the determination as to what “reasonable probability” means? Development Commissioner Michael Freimuth, the same guy who determine that a “drop dead date” of July 31st actually means “drop dead at some unspecified time to be determined at some other unspecified time”. To that extent the issue of the exterior improvements is important as it serves a preview of the sort of extra-legal hokey-pokey the Mayor plans to do come winter and a sad commentary on the rule of law in New Rochelle.
What is clear from all of this is that Louis Cappelli runs New Rochelle not the residents, not the voters, not the bureaucrats and certainly not the Mayor and our other elected members of City Council.
RELATED: Report filed from 5 Anderson at midnight on July 31, 2010 which includes clips of Bramson, Fertel and Sussman talking tough on the July 31st deadline.
Bramson speaks with forked tounge
Two things are abundantly clear;
1) The new development commissioner, Michael Freimuth,
has learned New Rochelle lesson 101, as commissioner
you become a scapegoat and we will throw you under
the bus when convenient.
2) Mayor Bramson’s word is worthless; Bramson stated it
was time for Cappelli to “put up or shut up”. So
Cappelli failed to put up calling Bramson’s bluff and
Mayor Bramson shut up.
The city council has been hiding behind the New Rochelle Industrial Development Agency (IDA) for decades concerning tax abatements and now the council has found a new pigeon in Commissioner Freimuth. This is why New Rochelle’s development policy is abominable the city ALWAYS deals from a position of weakness as opposed to dictating to developers. There must be compromise which assumes a 50 / 50 split. It’s time for the New Rochelle taxpayers to realize a return on their investments as opposed to being soaked year after year.