In July 2001, the Westbury Theatre on Post Avenue closed to the public after being deemed "unsafe" by the Village of Westbury. At that time, the building was being used as a twin movie theater while owners Rod and Corrine Straehle worked to raise the necessary funds to turn the building into a performing arts theater featuring Broadway road shows. But now, two years since the credits last rolled, the village and the Straehles are involved in a complicated legal battle and the future of the theater is in the court's hands.
The Westbury Theatre, built in 1927, was closed two years ago to the public.
In 2001, the village filed an order to show cause with the State Supreme Court seeking to affirm their right to shut down the theater to the public so that it could inspect and determine whether it should be "demolished, permanently secured, and made unavailable to the public, or otherwise... disposed of." Village officials based their claim on various health and safety issues involving the condition inside the theater at the time of a routine inspection.
The case was transferred from judge to judge and in January 2002 Supreme Court Justice R. Bruce Cozzens, Jr. ruled that although the building should remain closed, the village "failed to demonstrate that the premises are in imminent danger to life and safety as a result of structural instability, fire, explosion or other hazardous situation."
Due to dilapidating ceilings, plaster is falling onto the theater seats and floor. Photos courtesy of the Village of Westbury
The village has since appealed Justice Cozzens' decision and is awaiting a ruling before the Appellate Division.
In the meantime, taxes have not been paid on the property in over seven years. According to village officials, the Straehles currently owe almost $80,000 worth of back property taxes and interest to the village, with bills to the town, county and school district also in default. In addition, the village has laid out money for legal fees as well as the costs generated from the hiring of experts to assess the condition of the building.
As a result, the village was forced to turn to the courts yet again, seeking the right to foreclose on the property. In January 2002, the court ruled in favor of the village, but stated that nothing can be settled until the legal battle over the property itself is resolved. Until then, under state law, only the Straehles are allowed in the building.
The Straehles purchased the Westbury Theatre in the 1980s and converted the building into a twin-plex, showing some of the most popular films of the day to residents of Westbury and its surrounding communities. But in the late 1990s, business at the Westbury movie house began to decrease, due in part to the larger, more elaborate theaters opening in the area and the declining condition of the Post Avenue building.
When the Village of Westbury and its Business Improvement District's (BID) downtown revitalization project got under way in the spring of 1999, Post Avenue storeowners approached the village, submitting petitions containing more than 120 signatures requesting something be done to improve the theater's appearance. As a result, village officials discussed the condition of the building with the Straehles, who reiterated their plans to convert the 1927 movie house into a live performing arts theater featuring Broadway road shows.
Several years earlier, Corrine Straehle proposed the idea, estimating that it would cost around $30 million to completely renovate the theater, adding that the money would be raised under the auspices of the Long Island Performing Arts Theatre (LIPAT), a non-profit corporation she created to establish the theater.
"Our revitalization and our downtown beautification project is what triggered the village's involvement with Mr. and Mrs. Straehle," said Westbury Mayor Ernest Strada. "The village really had no option or alternative than to hope that her plan would ultimately materialize."
But in early 2001, the village received additional complaints about the theater from the Nassau County Department of Health and the Fire Marshals Office and sent its building department in to perform an inspection. According to village officials, while the Straehles were waiting for the monies to fund the project, necessary renovations and improvements to the theater were put on hold.
Upon inspection, village officials declared the building to be unsafe, citing open junction boxes, an unacceptable level of water penetration, the infestation of rat droppings and dilapidated ceilings. In addition, inspectors believed there to be the presence of asbestos, lead and mold, which was a direct result of a leaking roof that allowed for the emission and penetration of water into the building.
Water buildup in the structural supports of the plaster ceilings was causing them to become heavy and not structurally sound, said Village Clerk Tom Savino, and as a result, they were deteriorating, separating and falling onto the seats and floor throughout the theater.
"The lights did not work [in the theater] so people did not have an idea of what they were sitting in," said Savino. "To give you an idea, it was raining and [the inspectors] watched the rain coming down the walls. There were buckets all over the place catching water."
Based on the condition of the building, the village requested that the Straehles make numerous, necessary repairs and that if they didn't, the village would, according to local law, have the right to make the repairs themselves. While the Straehles argued that the village did not have the right to make that decision, the Straehles themselves closed the theater to the public in late June 2001.
The village then hired experts to go into the theater to assess and document the condition and, on July 30, 2001, the village board of trustees held a public meeting to discuss the findings. At this time, all reports and testimonies from village inspectors and experts were put on record and the owners were given the opportunity to voice their side; neither the Straehles nor their attorney, George Frooks, appeared.
As a result, the village went to court, and their request for restraining order to keep the building closed until the suggested repairs were made was granted. Soon after, however, the Straehles took the village to court, filing a lawsuit challenging the village's authority to close the theater or make the suggested repairs.
In January 2002, Justice Cozzens ruled that while the building needed to be closed and repaired, the village had not proven, under state building code, that the theater was in imminent danger of collapse. The judge granted the village the green light to further inspect the theater but, at the same time, placed limitations on the municipality, ruling that no tests that would do harm to the building could be performed.
According to Frooks, the judge ruled in favor of his client based on the fact that village violated state law. "When this whole thing first started, the [village's] former building superintendent went in to do an inspection and gave my client a laundry list of things to do and two weeks to do them in," he said. "[The inspector] was following the local law, which specifies that repairs must be done at the discretion of the town. But the local law was in violation of state law. The building owner, under state law, has the right to secure the building, meaning close it to everyone except themselves and the contractors, until they are ready to do the repairs. Let nobody in, nobody gets hurt."
Savino, however, stated the village's argument is that the local jurisdiction should have the right to determine what is and isn't safe. "We have building inspectors and that's what their expertise is - to determine if a building isn't safe. It may be ready to collapse, but we can't tell unless we do further probing," he said, adding, "We were fully within our policing power to protect the public's welfare. The court is mistaken in applying the state code to set the standard that a building must be in danger of collapse for us to say it must be closed and by doing so is preventing the health, safety and general welfare of the public.
Strada agreed, saying, "It's our obligation, under village law, to proceed when the general welfare of the public is being jeopardized. We are asking the courts to affirm the village's power to make the necessary repairs so that it is safe for public use and can be an operational building in the downtown. The judge totally missed the issue."
Last January, the village sent a letter to the New York State Conference of Mayors and Municipal Officials (NYCOM) inquiring about their rights, under local law, to declare a building unsafe. In the letter, NYCOM Counsel Andrew Brick stated that "A village may enact a local law providing for the demolition and clean up of unsafe buildings, and, in the event the owner fails to reimburse village costs, also providing for the sale of the property in order to effectuate its lien."
The village also inquired whether court approval was necessary before it could take action under its unsafe buildings local law. "Due process does not require a court order when declaring that an unsafe structure constitutes a public nuisance," stated Brick, adding that '"State agents would have no role in a determination of a public nuisance under a village's unsafe buildings local law. There are instances when state personnel can enforce the state building code at the local level, but such authority would be inapplicable in instances where a village is pursuing action under its unsafe buildings local law."
Frooks, however, argues that when it came to inspecting the building, the village violated various court orders. "They were granted court ordered permission to check for asbestos only," he said. "I know what the word "only" means. Contrary to what the court said [the village] went back and tested for lead and mold. They took the tests without getting the court's permission."
Although he did not deny that there is indeed mold present in the theater, Frooks stated, "I don't think I would like having mold around [but] there are no real standards on mold yet, so it's just a matter of opinion." He added, "The air quality was not dangerous because the building was closed when they took the tests. [In addition], the asbestos found was in the boiler room, which hadn't been used in years, and asbestos is not dangerous because it doesn't move."
During a recent interview, Corrine Straehle would not discuss details of the lawsuit or answer specific questions pertaining to the inside of the theater, but said she would be glad to talk about the Long Island Performing Arts Theater. "Our main issue is the theater project and the historical importance of it," said Straehle.
Built in 1927, the Westbury Theatre is authentically copied from a theater contained in a medieval castle in Penshurst, London built in the 1300s. That theater, whose architect is unknown, is still standing and bears a remarkable resemblance to the Westbury Theatre. In a 1999 Westbury Times article, Straehle stated that there is evidence that canvas paintings featured in the Westbury Theatre are the work of the famous Hungarian artist Willy Pogany, who did theater paintings in the late 1920s and who painted the Children's Hospital murals in Glen Cove.
Such details, noted Straehle in the article, are major and would "bring prosperity to this village."
While the fate of the building's interior lies in the hands of the court, village officials state its exterior is becoming dangerous as well. Most recently, a falling asphalt shingle hit a young person on the head and there is concern that the marquee is in need of reinforcement. Currently, fencing has been erected around a section of the building to eliminate pedestrian traffic near the building.
"Every day this building gets worse and worse, and we are afraid that one day someone is going to get hurt," said Savino.
With hurricane season and the winter quickly approaching, the village attorney recently submitted a letter to James Pelzer, clerk of the Supreme Court Appellate Division, requesting the case be expedited. "The court's inability or inaction to make a determination puts us at risk," said Strada. "This letter is an appeal stressing the urgency of this situation."
The letter stated that "... Shingles have recently fallen onto the public walkway and, in one instance, a passing pedestrian was struck. There are gutters, TV aerials and portions of the roof decking which are loose and in danger of falling. The village board is concerned that a member of the public will be seriously injured by falling debris, either by items that are able to be seen from the exterior or as the result of additional problems which require probing to determine whether they are in danger of collapse..."
The letter went on to say, "The roofing system and general components of the building continue to deteriorate. Such deterioration has eroded the roof substrata and structural components to such an extent that these items must be addressed in an attempt to achieve structural integrity of the [roofing] system..."
According to Strada, the wording used in the letter was most appropriate for the condition. "We are not saying there are structural components of that building that are ready to fall," he said. "We are saying that the roof is a structural element of that building and when you have water penetrating and you have a wood surface that has become deteriorated to the point that the fire department says their people will fall through it if they go on it, fire or otherwise, and you have the amount of water that's been going into that building, you have a dangerous condition."
In response, Frooks sent a letter back to the court, referring to the village's argument as "factually and legally incorrect," adding that his client has since hired a contractor to address the problem with the shingles. In a recent interview, Frooks said engineers have inspected the marquee and determined that it is secure.
Frooks' letter also states that the village's request to expedite the case is a "sham and continuation of the same misrepresentation of facts used in the court ... in order to help out a crony of the village mayor."
In his own defense, Strada stated that the village does not, nor did it ever, have any intentions of using the building for anything other than a movie theater. "I was born and raised in the village and that theater was my home for years and years and years. The community wants the theater, the village administration wants to see the theater, the general public, even those outside the village, want to see the theater," he said. "There are no plans to change the property [into something else.] We don't want anything to happen to that building other than for it to become another theater. It's the treasure of this village."
To date, Straehle said some 115 donations in the amount of $100 each have been made to support the Long Island Performing Arts Theater project and donations are still being sought.
But the amount of time it would take for the Straehles to come up with the necessary funding, said Strada, is a large part of the problem. "Over time, the roots that Corrine [Straehle] planted never took hold," said the mayor. "To try and solicit donations of a hundred dollars at a time to implement a program that could ultimately cost millions is, in my opinion, an unimaginable and undoable thing. We have come to the conclusion that she has a dream that will never come true unless millions of dollars fall from the sky."
While the Straehles are trying to raise the necessary monies to fund the performing arts theater, village officials state taxpayers have been forced to foot the bill. Currently, the Straehles owe approximately $170,000 on the property, including taxes and liens to the village, as well as back tax to the state, county and Westbury School District.
In January 2002, the court ruled in favor of the town, granting them the legal right to foreclose on the property. The village, however, cannot move forward with the foreclosure until it receives a ruling from the Appellate Court.
According to Frooks, his client has offered to pay the money owed on the property, but was denied. "My client went to the village with a certified check and was refused," he said.
Savino, however, stated that since the village is a municipality and not a private mortgager, eliminating the lien on the property is more complicated then simply submitting a check to cover back taxes. "Municipal tax liens work different than a regular mortgage lien. Once an action to recover back taxes is filed against the owner, they can't just pay the past tax bills," he said.
"They must also pay the village's cost to collect those taxes and whatever assessments have been liened against the property. The state makes sure the taxpayers' expenses are protected [because] in essence, every other taxpayer has been paying for their default. That stance was affirmed by the court in the foreclosure action."
For Strada, the current situation between the village and the Straehles is one that he believes could have been avoided. "Both parties would have been far better off if we had been able to come to a meeting of the minds," he said. "If Corrine [Straehle] considered that the monies being spent to litigate this would have been more beneficial if expended on the building it would have been to her advantage. Instead, she was very uncooperative."
He added, "It has to be Corrine's way or no way and you really can't achieve anything when someone is that rigid. That is how we came to be where we are today, which is an unpleasant and adversarial situation, unfortunately, but the village had to what it had to do. This hurts me personally because I was very supportive of Corrine's plan and I hoped it would eventually materialize and she would be successful."
Savino agreed, saying, "We all want this dream to come true, but as you are waiting for this dream to come true, the building is falling apart," he said. "What the village had to do was say 'its gone too far too long.' You can't let the building continue to fall apart while you are waiting for something to happen and nothing is happening."
According to Frooks, "There is no question in my mind that the theater is in need of renovations. No one is questioning that. I can understand the village's desire and frustration, but they have to do things legally. It's not going to get renovated the way things are currently going."
As the parties involved wait for the court to render its decision, Strada said the building is deteriorating so much that by the time the case is resolved it might be economically unfeasible to invest the money to try and restore it.
"The longer it stays empty and the longer it stays in disrepair, the worse it becomes. At some point, to do the repairs, to retrofit it could be so costly that no developer or investor will come in and be able to realize a return based on his investment," said the mayor. "And that's a shame."