Property Law Doesn't Require Greenburgh To Bid Out Nursery

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While Greenburgh does not legally have to open up the Frank's Nursery site for competitive bidding, a lawyer for House of Sports says it's within the town's "fiduciary duty" to make as much money as possible for taxpayers.
While Greenburgh does not legally have to open up the Frank's Nursery site for competitive bidding, a lawyer for House of Sports says it's within the town's "fiduciary duty" to make as much money as possible for taxpayers. Photo Credit: Samantha Kramer

GREENBURGH, N.Y. — Despite claims that Greenburgh has a legal obligation to take bids on the sale of the former Frank's Nursery site, it is actually within the town's rights to sell the property privately, according to the town attorney.

In a letter to the Greenburgh Town Board, House of Sports attorney Stephen Kass wrote that the town's intent to sell the property at 715 Dobbs Ferry Road without competitive bidding or a reliable valuation was "equally illegal and irresponsible."

But Town Attorney Tim Lewis notes that Section 1166 of the state Real Property Tax Law states that whenever a tax district acquires property through foreclosure — as Greenburgh did with Frank's Nursery — it is authorized "to sell and convey the real property so acquired, either with or without advertising for bids."

"I don't know what the basis is for his comments," Lewis said of Kass. "When I look at Section 1166 of the Real Property Tax Law on a foreclosed piece of property, the town is authorized to sell it at a private sale or at an auction."

Yet while it's not violating a property law, Kass said it's within the town's fiduciary duties to seek the greatest value possible for the site, which can only be achieved by opening bidding to competitors other than Game On. House of Sports has offered the town $3.5 million for the property — doubling Game On's offer.

"It's a violation of a basic duty as elected officials not to seek the maximum value of a sale," Kass told The Greenburgh Daily Voice. "While there's no statute that specifically requires an RFP [request for proposals], they must take reasonable steps to maximize sales proceeds — and that, they clearly have not done."

In addition to a higher bid, the House of Sports' complex would not require a zoning variance as Game On's proposed eight-story bubble would. House of Sports intends to construct a three-story building within the residential area's height limits, said House of Sports CEO Donald Scherer.

Scherer said the town has responded to House of Sports' purchase offer, asking House of Sports to "flesh out the details" of its proposal for the property, including the size and type of facility, which Scherer said House of Sports is working on.

House of Sports also is skeptical of a Dec. 13 appraisal valuing the 7-acre parcel at $1.62 million. On Westchester View Lane, just a few hundred feet from the site, plots of land are worth $500,000 — at least double what the appraisers totaled for the nursery's worth, Kass said.

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As to what the Town attorney Lewis has came up with stating that it is actually not illegal at all for Greenburgh to sell off Frank's nursery privately, I think it should go ahead with the idea if it thinks it is the right thing to do. However, there is also some sense in House of Sports attorney, Kass' sentiments that urged it is Greenburgh's responsibility to raise as much money as possible from the sale of the nursery for the benefits of the people.

I think what House of Sports attorney Kass is trying to fight for is for the benefits of taxpayers and that is for Greenburgh to sell Frank's nursery at the highest price possible. However, what Kass has put across is wrong because there is indeed no such law that states Greenburgh is performing an illegal act of selling it off privately instead.

And now for something not completely different.

3 quotes (or close to) inspiring a fourth

1) When the one great scorekeeper comes to write against your name, he measures not that you won or lost buy how you played the game

2) In the symphony of life the rests are as important as the notes

3) As you go though life keep your eye upon the doughnut and not upon the hole;
however, the swiss cheese is holier than the doughnut

4) When the Feiner circus rolls into town, not only can you get taken in along the midway but also by watching the center ring and the sideshows unfolding at the two flanking rings.

This message brought to you by: Rubes 'R Us

Part Three
as before, start at the beginning by scrolling down.

In real estate, property offered for sale or for lease can realize the highest value most likely if a "user" seeks it. Investors seeking returns on their investment generally buy real estate with return on investment (ROI) in mind; conforming to these models involves calculating and managing all costs involved INCLUDING how much to pay for the property, be it raw land, occupied by rent paying tenants (residential, commercial or a combination) and a whole passel of similar concerns.

However generally speaking, the buyer of real estate who intends to use it for their own business is widely assumed to be the buyer willing to pay the highest price.

Conversely, those who would buy real estate solely to use it for their own purposes would be, in most cases, seeking property which is absent of any encumbrances that would stand in the way of their immediate use.

One such encumbrance might be a zoning restriction; one such encumbrance might be a height restriction; one such encumbrance might be an environmental issue...

However if an interested party were assured that these could all go away but it might take some time, that might scare some interested parties away if they needed a site for immediate use. And then, for some interested parties who could wait, this might not present a problem.

To other interested parties (those requiring immediate possession), another type of encumbrance might be a deal breaker. For example a long term lease which provides for a non-owning tenant to occupy the property and thus making it unavailable to the owner for the life of the lease -- this is a very real problem. However, leases can be bought from the Lessee to the financial gain of the Lessee which to some tenants could be a "windfall" although none of the gain would accrue to the Lessor.

But what if you had (hypothetical of course) a situation where you had an interested party who had neither the financial wherewithal to pay rent or to purchase but still had high hopes of winning the lottery or some other plan to secure funding?

But what if you had an interested party who could only obtain the funding to build, operate, purchase or lease from those who controlled the purse strings but they required the interested party to at least have the site (the objective of the sought after funding or investment) under their control? And the interested party lacked sufficient seed money of their own to tie up such a site, say the Frank's Nursery site for purposes of illustration.

What if (even only as unintended outcome) you, in interested party, had reason to fear that others, nearby or far off, hearing of your intentions (you having circulated a business plan to would-be investors) became aware of the developed potential of the site and became interested in the property themselves -- in other words, competition?

One sure fire way to thwart the interest in others is to tie the property up so that others can't get at it. But if you were "short of cash" and lacked the funds to do so in the traditional way (a lease with rent security) or a purchase (with say, 10% down on contract), how could you manage this.

So let's return to where I left off in Part Two with ENTER FEINER.

What if you entered into negotiations to lease the property, say for 15 years commencing only after the zoning, variances and environmental issues were history and rent commencing after construction was complete and the Certificate of Occupancy was awarded AND the lease didn't obligate you to put up any real cash as Security was never mentioned? Sound familiar. Sound like something that would work for you if you were that interested party?

But this is Feinerland -- where Feiner urges other New Yorkers to obey all laws even though this has never concerned his personal self in the past. Let's just suppose he knows, underneath all the pomp and circumstance, storm und drag that such a lease would be illegal (he has after all been Town Supervisor for over 20 years and before that serving on the County Board -- is not so convincingly dense as he lets on) and that when put to the test (as it is) that the lease won't stand up. But (again this is Feiner which means not only multi-tasking but smartphone tapping and multi-level mind set) what if the lease was never intended to be executed but merely more of this skilled deflection away from its only intended purpose: TO BUY TIME FOR GAME ON 365. Time which is cheap requiring no money to be put up because the lease was never to be signed. Time which ties up the problem which keeps it off the market and discourages users because it looks like it is going to be tied up for 15+ years.
Time which could convince lenders or investors that there is a real site for their project and information that could be doled out to these lenders or investors on a confidential basis that their funding will be further secured by ownership of the site. So, here's the riddle of the day: When is a lease not a lease? When it is drawn up by Feiner with a hidden agenda (one which I doubt his teammates even considered had they questioned how come their "Resolved" Lease was never signed by either Feiner or Game On 365? In September, in October, in November after the Referendum, in December, in January when it no longer became the talk of the town being replaced by the newest scheme: the sale to Game On 365.

As sale tied to questionable Appraisal with inaccuracies, irrelevancies and most disarming, no reference to the Environmental issue either by the admittedly unqualified Appraiser but not incorporating an opinion from a qualified party.
A proposed purchase price that would erase all concerns that the Town was selling it at a price below even the outstanding taxes. Yes such a neatly wrapped package that was headed to the private client showroom until a local competitor interjected an unsolicited 2x higher offer. Hard to turn down?
Remember this is Feinerland.

The show's not over till the bike rider sings.

And lest you forget, Feiner knew for certain that the Lease, the subject of the Referendum, had not been signed. That makes the Lease language of the Game On 365 financial contribution to the environmental cure, the roadside signs promoting "$5,000,000 to Greenburgh" all false and misleading information to those persuaded to vote in favor of the Lease based on these assumptions.
Part and parcel to Feiner in operation and par for the course as he has done the same for Ferncliff -- does anyone remember that Feiner once distributed a phony draft lease which showed rent of $980,000? Town Attorney Lewis thereafter referred to this amount as merely a "placeholder".

Better to have no Town Supervisor than learning to love the one you're with.
Hal Samis

I apologize for typos, grammatical mistakes, etc. I don't have time to reread these lengthy pieces. However I stand by the content.

Part Two
Readers would benefit best by starting from Part One which is already posted (scroll down).

I have included the Ferncliff script not just to indulge my usual commitment to exposition so that even a newborn will understand that things in this Town don't just happen; there is ample documentation from issue to issue of "premeditated malice" afoot. The Frank's site and Game On 365 horoscope are just the latest example.

That this site was intended for Game On 365 alone was not left to chance. The only problem is that Game On 365's only asset was a great idea which they have attempted to leverage into actuality by going to the one person capable of taking this idea to the next stage: that person would be Paul Feiner, Town Supervisor of Greenburgh, NY. Feiner, having control over his hand picked Town Board aka unabashedly the Feiner Team, controlled the disposition of a choice piece of real estate the Game On 365 coveted: the former Frank's Nursery site. Its 7 acres of flat terrain, its close proximity to highway access and egress (also providing locational visibility for its 8 story high bubble) and its location, location, location being in the epicenter of an affluent 10 mile circle as well as its nearness to local schools which would provide financial fodder to its youth-oriented activities. That the Town of Greenburgh Parks Department was curiously "unwilling" to offer soccer fields throughout its network of Town Parks (unused WEBB/Presser on Central Avenue being one such example) was an additional inducement to come to Greenburgh. But it all comes down to finding a community where the head honcho would be a cooperative, determined but most importantly, a PATIENT supporter of the venture. And there arises the need to find a Paul Feiner, an engaging "do-gooder, double talker, who assumes the non-threatening public image of a likable schlub in both manner and costume; one who is always willing to take calls, solver of the problems he creates; one who
triumphs from both mismanagement and misdirection in the absence of competition for his job and one whose stranglehold on his office will suffice him until he arranges his own personal financial retirement package as he nears a

reasonable retirement age. (on purpose I've provided space to read between the lines).

Now there's two surmountable problems to Game On 365 using the Frank's site: one being solvable for certain and solvable with time and a recovering economy. The first being the environmental issues but these need to cured by whomever or whatever use of the property is made. So this is something that can be cured by money -- either coming from below market rent or a below market value sales price. It all depends on how Feiner wants to position this problem for public consumption. But be assured, there will be a real and substantial cost to curing the environmental problem and the cost will be paid by someone because no matter how much butter is used in the preparation: there is no free lunch.

However it is the second problem that needs the special abilities of the Town Supervisor to provide; the grease that allows the machinery to function as intended. I've already mentioned that Game On 365 had a great idea to market but ideas need a home (Frank's) and they need money to see the light of day.

Only having the idea is not enough. And like the house that Jack built, a sports facility without a place to put it is also not enough. OK, here's Frank's which fits the bill -- their second contribution of Game On 365 to riding the road to riches -- finding the site and CONTROLLING it.
But before they can travel that road to riches, there is but one roadblock stopping them: they don't have any, or near enough, to buy the car, fill it up with gas and pay the traffic ticket(s) if they get caught speeding in an unregistered vehicle, with a broken tail light and their driving license has expired. Fortunately for them the jurisdiction is Greenburgh Traffic Court whose operating budget is controlled by Feiner who provides interns to sort through the tickets.

You see the BIG problem for Game On 365 is how and where are they going to get the money to do their thing and HOW MUCH TIME CAN THEY BUY TO GET THIS MONEY. Putting $5 down and paying $2 a week just won't cut it.

ENTER PAUL FEINER (stage left), cue the Feiner Team.

But hold off just a minute, Paul while I explain how to buy time. And this is why I caused readers to suffer through my dressing the stage with the WESTHelp/Ferncliff story: to show how time can be bought with no money down.

And this occurs in PART THREE (not because I'm playing games but because I write in these boxes online and have lost the entire comment, possibly because the time onsite is parsed out. Be right back for the next installment.

Note: there is a substantial revelation ahead.

I recall that the Town's right to sell the property without RFP had been even earlier put forth when the legitimacy of the Lease first came into question. Thus this "news" first appearing before readers today is not news to those who have been following the story. New readers, though, need to know that while the Town is not expected to be an active and knowledgeable participant in local real estate disposition, it would be reasonable and to the benefit of all taxpayers, residents and VOTERS were the Town to seek the highest price.

And there are many ways known even to Greenburgh to achieve this but Feiner resists their implementation. Advertising the property in credible sources and by using display ads outside the legal notice section, hiring a real estate broker(s) with commercial land sales expertise (this requires avoiding at all costs anyone assisting the Ferncliff school),

Furthermore, the basis of the law (apparently Town Attorney Lewis has read the law after all; something that wasn't clear when he earlier ordained for Feiner's benefit alone that there was no problem with leasing the property -- this causing residents to sue the Town -- later embellished by the Town's newest fiction that it decided to sell only to avoid lengthy and costly litigation) is that municipalities need to recover the sums they are required to advance to taxing districts (School, Fire, etc.) when the owner stops paying property taxes: which is how the Town came to own the property, having foreclosed for non payment of taxes.

So should the Town explore ways to obtain a price in excess of the tax arrears outstanding? That would be something that Feiner does not want to occur because he is thisclose to participating in the big payday that Game On 365 is promoting to would be investors willing to fund the cost of the sports facility. Feiner's share of the profits and glory does not require him to take out his checkbook; it only requires his cooperation as Town Supervisor.

Mr. Feiner can be a powerful and useful business partner when he wants to; he can argue 24/7 and see that his position appears in newspapers across the nation, on television local and national, on blogs, Facebook...everywhere. Those who have also followed his "pop pandemonium" show regarding the WESTHelp situation have also ready seen his playbook in action. And if residents were just a little bit sharper and more vocal they would have seen what is coming when Feiner takes the show on the road: look carefully and you too can see the circus wagons rolling up to the Frank's site.

First a quick review for those still in the dark. WESTHelp, which brought the Town $1.2 million a year in rent was unable to renew its lease with Greenburgh which held a master lease with the owner, Westchester County, for "$1" with but one condition in exchange for the County's largesse: that the property's 108 housing units (built and paid for by the County) be continuously used for low to moderate income residents. The local civic association, Mayfair-Knollwood, objected to this "element" living nearby. Feiner sided with Mayfair-Knollwood and has been doing everything possible to thwart any similar use from happening.
One of the ancillary effects of "doing everything possible" is that there has been $0 of revenue coming to Greenburgh since Feiner has allowed the 108 units to remain vacant. $0 revenue affects the taxes that Greenburgh residents pay to the Town; the 2013 Town Budget already reflects the absence of this revenue.
The second of the ancillary effects is that the Town has failed to maintain these 108 units and this, in turn, has led to their decay (correctable and renewable but at a cost) which Feiner is using to advance his own preference (conveniently that of Mayfair-Knollwood as well); that being his own candidate, Ferncliff School, which in a County-wide search going on for five years has been unable to find any other suitable property to meet its rigid needs. Incidentally, their use of the former WESTHelp property requires the demolition of the 108 housing units. So if the 108 units were to become further disabled (or even to mysteriously burn down), then there could be no objections (other than the terms of the master lease) to turning the property over to Ferncliff to build out its campus were the County also willing to extend its remaining 19 year Lease for another 31 years.
And Greenburgh would benefit too from the $500,000 ($500,000 being less than $1,200,000 but more than the nearest housing proposal @ $360,000 while both Ferncliff and the housing proposal being greater that the current $0 rent since OCTOBER 2011). So Feiner has allowed the property to remain vacant and deteriorating while pursuing his favorite choice: Ferncliff. And one "minor" point: common to real estate transactions (lease or sale), the interested party must be Ready, WILLing and ABLE. Ferncliff has neither the resources to build nor the resources to pay rent; their relocation appetite requires NYS to step up with cash and guarantees which they have not yet committed to do. On the other hand, the housing proposal is ABLE. There are even more wrinkles and twists not to Feiner's credit but I have cited enough to give even newbies enough to familiarize themselves with how Feiner operates when he "needs" to get his way: his way not necessarily what's best for all of Greenburgh.

And now I am about to explain the newest revelation. But first, before I come back in Part 2, I'm going to take a coffee break. While you wait, let me leave you with this thought: the Frank's site, size, flat terrain, nearer to its existing Yonkers location, central location, nearness to highway entrance and exits, similar too in that the existing structures would need to be demolished and, even though there is an existing soil contamination issue, this problem needs to be cured before ANY use by ANY party will be allowed.

So wait for Part 2 coming your way after I take a "5".
Hal Samis

You are right, the town doesn't have to bid the property. At issue is less the fact that the town can sell the property, which they should have done initially. Rather, the issue is that the town did not! Feiner created a convoluted scheme to “lend” the property to GameOn 365 for a virtual yearly pittance for 15 years. The property through this proposal is slated to make an estimated $55M for GameOn 365. That's great. But town residents shouldn't be subsidizing them. This site jumped on the Feiner bandwagon and supported the lease - which was illegal.

Those of us who follow the way Feiner operates the town, know that he does whatever he pleases without regard for the law. If GameOn 365’s proposal was so good, why not see the light and take that knowledge, craft it into a bid/RFP and get the most for the Town? Because there's something in it for him and the board! It's all been posted on ABetterGreenburgh.blogspot.com - go take a look.

Feiner has cost the taxpayers millions of dollars between the water department fiasco, the Fortress Bible decision against him, Juettner and the town for discrimination and destroying evidence (there is more), Dromore Road, Fulton Park, Glenville, Unincorporated Northern Greenburgh and more.

Feiner is incapable of doing the morally or ethically right thing for the Town’s residents. He has to go (mostly to jail).