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Town Awaits Response From Palisades Center
By Tina Traster
The Town of Clarkstown last week informed the Second Circuit Court of Appeals that the town lifted the restrictive covenant that had limited the Palisades Center from developing unused space.
But whether this ends the litigation between the town and the mall remains uncertain.
In the letter dated Dec. 24, attorneys from Wilson Elser, the town’s counsel, tells the court, “In light of these developments, some claims in this matter are now moot.”
The letter also states, “In particular, the appellants’ sixteen causes of action in the second amended complaint for declaratory relief seeking the court to annul and to declare void, illegal or ultra vires the restrictive covenant and negative easement are moot since the restrictive covenant and negative easement have been terminated by the will of the people and no longer exist.”
In a 24-count complaint, EklecCO, the company that owns the mall, alleged the Town of Clarkston, Supervisor George Hoehmann, the Town Board, and the Planning Board denied EklecCO its due process, equal protection, and First Amendment Rights. The case was largely based on the Town imposing unique conditions, including the restrictive covenant and public referendum, on EklecCO and the Palisades Mall.
In 16 of the 24 counts, EklecCO sought “declaratory relief,” which means they were seeking the court’s determination that the town violated its rights. These are the counts Clarkstown claims are moot due to the lifting of the covenant.
The remaining eight counts sought damages and attorney’s fees based on those alleged violations. Even if the court determines the issues at hand over the alleged violation of rights are moot, it is unclear what the court will do next.
Generally, because federal courts only have constitutional authority to resolve actual disputes, legal actions cannot be continued after the matter is resolved. However, whether there’s still a live dispute as to whether the town had violated the mall’s rights and whether the mall is entitled to damages and attorney’s fees, remains to be seen.
What will happen next?
The appellate court may seek a response from EklecCO regarding Clarkstown’s claims of mootness or EklecCo may file a response. The court could also enter a ruling on the issues in the appeal, or remand the case to the district court to make a determination on Clarkstown’s claims of mootness.
It’s been nearly a year since oral arguments at the Second Circuit Court of Appeals, which is deciding whether the District Court in White Plains appropriately dismissed EklecCO claims based on them being filed after the statute of limitations lapsed. The District Court decided that EklecCO claims were time-barred, without having decided the merits of the claims.
The district court never reached a determination on the merits or any damages; the case was dismissed based on the statute of limitations in May 2019.
In November, the citizens of Clarkstown voted to lift the 20-year restriction that prohibited the Palisades Center from developing additional gross leasable space in the mall. The mall is now free to use 250,000 square feet of existing empty space on the fourth floor and build another 250,000 square feet outside the four walls, though its plans are subject to town approval.