The Haberman vs ZB - Democratic Political Debacle

Refined and updated this Post from 8/6/2014.  (Updates in FONT)

I wanted to share my experience from last night’s City Council meeting (8/5/2014; then Council members: Adelson, Torres,  Eramo, Goggin, and Mandel.)   During the good and welfare portion of the meeting  I asked the city council if they approved Long Beach's legal counsel to sign the stipulation and the response was "No." (re: Supreme Court of the State of New York County of Nassau Sinclair Haberman and Belair Building, LLC, (Petitioners- Plaintiffs), -against- Zoning Board of Appeals of City of Long Beach, NY, et al  (Respondents – Defendants) Stipulation of Settlement Index No. 001138-04)
What is most upsetting is that the City Council and City manager never held a press conference, or even made press release following this calamitous issue.  

To be clear, that's like if you hire an attorney and when he is working on making a legally binding agreement with another party he signs your name without even ASKING you. That's what happened here, except this attorney was yours, mine, and the rest of Long Beach's 33,750 residents. This is all done in silent, without the client's/city knowing of it.  If the City was going to have our attorney sign it, it would be ethical for a public review to take place on our council's agenda. The public review would allow our communities' organizations (Civic Associations, Water Department, Fire, Police, Historical Society, and Schools to contribute their thoughts and feed back. This would enable us to have a sense of what we truly do or do not want to have in relation to the proposed two nineteen story buildings/towers along our boardwalk shore.

Unfortunately, no such public hearing took place.  In the stipulation there are agreements, for i.e.: #84. “The Stipulation has been reviewed and approved by each of the parties and, by signing their names hereto, the attorneys for the parties affirm that their respective clients stipulate to and agree with each of the factual statements made in paragraphs 1 through 55 of this stipulation…” (That means you and I, “the clients”) “… have approved this agreement and authorize our attorney to sign this agreement for us.” However, we did not approve the agreement, let alone have an opportunity to.  Clarified last night, it is also the case that  by the city council President Scott Mandel, the council did not authorize (then corporate counsel, now Judge) Corey Klein to sign it. But yet, he has signed this stipulation. Scot Mandel also stated that there is a lawsuit happening and he cannot discuss it. To reiterate, our Counsel signed our name, without having the authority to do so, and now, through our taxes, we are paying for extra legal counsel. Those are facts. If you want my opinion, I'll elaborate on that further down, but there are some more interesting conditions in this stipulation that I'd like to post first.

#85. By signing their names hereto, the attorneys for the parties affirm that they have executed this Stipulation pursuant to the authorization of their respective clients and that their respective clients have taken all actions as required by law to provide that authorization.”

#44. After two days of mediation, lasting more than 8 hours on each day, with the assistance of Judge Crane, and upon his strong recommendation, it was determined by each of the parries, independently and upon the advice of their counsel, that it would be in their best interest to enter into this Stipulation to settle this action/proceeding, and to have this Stipulation "so ordered" by a Justice of the Supreme Court, for the following reasons:

A. to avoid the uncertainties of litigation;

B. to avoid the potentially financially crippling contingent liability of the City and the other City Respondents, which although denied by the City and the City Respondents, is claimed by the petitioners to amount to between $50,000,000 and $100,000,000;

C. to relieve the City from the onerous financial requirement of installing underground utilities on Shore Road between Lincoln and Monroe Boulevards;D. to relieve the City from having to account for and return the present value of the $200,000paid by the petitioners to the City in 1989, inter alia (among other things), for the installation of underground utilities on Shore Road between Lincoln and Monroe Boulevards;

E. to eliminate any residential use of the previously approved Building "4" on sites "B" and "C" , so that it may be used only for parking;

F. to preserve and not impair the City's bonding ability and to increase its bond rating;

G. to encourage development and investment in the City after the extreme devastation to and in the City caused by Super Storm Sandy;

H. to foster the rebuilding of the tax base of the City by substantial new construction;

I. to attempt to increase the values of waterfront and other properties within the City, which, in turn, will increase the tax base;

J. to promote the overall health, safety, and welfare of the residents of the City; and

K. to preserve, but modify the vested rights acquired by the petitioners:

i. as they existed under the City's 1985 zoning, based upon their:

(1) demolition of the then existing income producing properties;

(2) construction of Bulding "1" as part of their planned and approved, integrated, four-building complex; and,

(3) construction of a swimming pool and other structures to be used as common areas for the four towers in reliace on their 1985 variance;

ii. as they presently exist today, based upon both the foregoing and:

(1) the hundreds of thousands of dollars that they have paid in soft costs for the project over the last 27 years in professional fees, building permits, and financing; and

(2) the extension of time to commence construction until after the City has installed underground utilities on Shore Road between Lincoln and Monroe Boulevards, based upon its stipulation extending the City's obligation to perform such installation; and

L. to compensate the petitioners in some measure for their alleged damages in excess of $50,000,000without the City having to expend any money. (So our legal counsel was instrumental in putting this together, and without authorization signed it, and it went to the Nassau County Supreme Court Judge to validate it. Without Our City Authorizing our legal counsel to sign anything....Anything With conditions to Pay between $50,000,000 -$100,000,000 in legal fees alone, not to mention the water infrastructure it states You, and I Are Responsible to construct for..and #50 is where the 19 story towers condition slips in..if you've followed this far, then this should be some added interest to hear how our city is described to the Nassau County Supreme Court Justice):

45. The extreme devastation caused by Super Storm Sandy to the City has had a significant and adverse impact upon the City and its finances and financing, properties, economy, and residents. (Sounds desperate.. But I don't need anyone in the Nassau County Supreme Court, let alone the public, to think I'm desperate...Especially while they use that to leverage an independent developers' weighty agenda on my shoulders/back)

46. Since December of 2003, the petitioners have been delayed in their construction of Buildings "2", "3" , and "4" by the ZBA's revocation of their building permit and the ensuing litigation to have that permit reinstated.

(Oh Now our desperation is going to be classified publicly)

47. During that delay there was a national recession that substantially affected not only the country as a whole, but the City in particular. The recession, as it affected the City, resulted, inter alia (among other things), in difficulty for developers - such as the petitioners - to arrange for construction financing, and corresponding reductions in the City's land values and tax base. Super Storm Sandy significantly exacerbated those problems, especially as it laid waste to some and substantially damaged other properties along and within close proximity to the City's waterfront:

48. There is presently an urgent need for the City to:

A. demonstrate the confidence of developers in the City's ability to spur redevelopment, especially along the City's waterfront;

B. increase the City's tax base that was devastated by Super Storm Sandy;

C. raise the values of the City's waterfront and other properties;

D. eliminate all the potentially financially crippling contingent liabilities of the City stemming from the petitioners; damage claims;

E. eliminate the City's financially onerous obligation to install underground utilities on Shore Road between Lincoln and Monroe Boulevards and make such obligation optional for the City; and

F. eliminate the City's financially onerous obligation to return to petitioners the present value of the $200,000 paid by them to the City in 1989, inter alia (among other things), for installation of underground utilities on Shore Road between Lincoln and Monroe Boulevards.

49. The petitioners require assurance from the City and other City Respondents that:

A. The petitioners will be able to complete their project without unreasonable interference from the City or any City agency or official, and that any intervention by them will only be in the compliance with applicable law, which, for clarity, includes the rights provided to the petitioners by this Stipulation and by the variances heretofore granted by the ZBA and as hereafter modified by the ZBA pursuant to this Stipulation;

B. their project will have the potential to provide them with a reasonable return on their investment;

C. they will be able to commence construction at such time as, in their sole opinion, market conditions make it feasible for them to do so and they will not be required to commence construction before such time; and

D. they will not lose their vested rights under the 1985 and 1989 Variances previously granted to them, as modified by the 1992 Extension Agreement, which, in part, permits them to delay the commencement of future construction pending the City's installation of underground utilities on Shore Road between Lincoln and Monroe Boulevards.

#50. In the petitioners are permitted to revise their project by eliminating the residential use at the location of the previously approved Building "4" and are allowed to increase the height of Buildings "2" and "3", so that each may be 19 - stories high plus a roof-top penthouse not to exceed 5,000 square feet, with all of the required parking within tax blocks 145 and 146 ("the revised project"); then the completion of the Revised Project, and the required variances therefor, will:

A. spur redevelopment of the City, especially along the City's waterfront devastated by Super Storm Sandy;

B. appreciably raise the values of the City's waterfront and other properties;

C. increase the City's tax base that was devastated by Super Storm Sandy;

D. produce a positive and much needed change to the City and the City's waterfront, which, even with the required variances from the ZBA, clearly outweighs and detriment to the health, safety, and welfare of the nearby properties, the neighborhood, and the community;

E. pro dive the petitioners with the benefit they seek, enabling them ti finally complete their almost 30-year old project in an economically feasible manner acceptable to the City, which cannot otherwise be achieved by them by some method feasible for them to pursue, other than by obtaining the required variances; and

F. will not have a significant adverse effect or impact on the physical of environmental conditions in the neighborhood or district.

#54. However, the parties recognize that the there has been a devastating impact by Super Storm Sandy on the City in general and on the local real estate market in particular; that the national, state, county, and City economies are in or close to crisis; land values in the City, especially along the waterfront, have been significantly diminished; and the financing, development, and sale of new construction high rise condominiums or cooperatives and conventional high rise rental housing currently ay not be feasible at this time.

#73. This Stipulation must be approved and "so ordered" by a Justice of the Supreme Court of the State of New York, with venue in Nassau County. Is such approval is not obtained, this Stipulation shall be deemed null and void, without force and effect, and the parties shall proceed with the is action/proceeding as if this Stipulation was never executed.

"Obligations of the City Respondents":

#75. It shall be a violation of this stipulation if any further action shall be taken by any of the City Respondents or any agency, department, commission, committee, or other body or officer, employee, or agent of the City Respondents to enforce any current zoning or other ordinances or regulations, or any amendments thereto currently under consideration or hereafter to be enacted, which in any manner conflict with or otherwise contravene the terms of this Stipulation and/or the ability of the petitioners to construct the Revised Project in accordance with the terms of this Stipulation and the revised variances granted in furtherance thereof.

#76. The City Respondents and every agency, department, commission, committee, and other body and officer, employee, and agent of the City Respondents shall diligently process all application s and perform all inspections and other actions required of them to assure the ability of the petitioners to construct the Revised Project in accordance with the terms of this Stipulation and the revised variances granted in furtherance thereof.

The day after this stipulation was signed by our (then) corporate counsel, (now)Judge Corey Klein, he sent the Nassau County Supreme Court Justice This Letter:

"Dear Judge McCormack:

The City Respondents herby reject nunc pro tunc (now for then) and withdraw from the proposed Stipulation of Settlement.

By reason of the allure of conditions precedent, including the prompt submission of the Stipulation for approval and the failure of the Stipulation to be so ordered by justice of the Supreme Court  (paragraphs 67 and 71), the stipulation is null and void.

The City Respondents (pursuant to paragraph 92) hereby notify the court and all parties and require the prosecution of this action be resumed in thirty (30) days.

In addition, please be advised that the Zoning Board of Appeals and the individual members of the Zoning Board will also be represented by Paul H. Aloe, Esq. of Kudman Trachten & Aloe LLP.  The City of Long Beach and Building Commissioner Scott Kemins will also be represented by Robert Spolzino, Esq. of Wilson Elser.

Very Truly Yours,

Corey E. Klein

Corporation Counsel”

Why would the attorney, and the city not go public with this mounting lawsuit which will impact all of our affairs? Why not, at the very least, hold a press conference?

I perceive our city's need of a spring board to rebuild our tax base since Sandy, but I feel that it's unethical for our attorney to sign a stipulation without our authorization, which now most likely has us in an even more complicated lawsuit than we began with. So our legal counsel had the audacity to make and sign an agreement which leverages assets of $50,000,000-$100,000,000 plus  developments which range from four buildings (Three Additional Sea Point Towers), to ¿ two nineteen Story Tall towers ? blocking the sun, ocean breeze, bay breeze from anyone on Lincoln-Monroe Blvds Beach-Bay (presently still waiting to see what the developers intentions are with respect to building proposals).  We do not have parking or infrastructure to accommodate that. .  Because of Corey Kleins unwarranted and impulsive actions, he is warranting further lawsuits towards you, me, and every single other tax paying resident of Long Beach.  I feel every day that goes by without the City Council acknowledging (in my view) this blatant act of abuse of power (whether it’s ignored because of political/election influences), is a wasted opportunity (and the corrupt powers that be will continue their lifeless grip on this beloved city).