GUILDERLAND — Bernard Radtke, who proposed but has since withdrawn his plan for a controversial contractor yard in a rural-residential Guilderland neighborhood, is now suing the owner of the property for backing out of the deal.

Radtke of B&B Containers asked the town zoning board in February to approve a special-use permit for him to store roll-off containers, trucks, and heavy equipment at 4304 Frederick Road.

The Sept. 15 court filing states Thomas Ensslin put his 56-acre property on the market about the middle of 2021, and that Ratke in November of last year presented Ensslin with a “partially executed ‘Contract for the Purchase of Sale of Real Estate,’ making a clear and unequivocal offer to purchase.” Included with the filing was a boilerplate contract for $105,000 between Radtke and Ensslin for the Frederick Road land, with the sale contingent on Radtke receiving a special-use permit for his proposed contractor yard. 

But a May 20 letter from Radtke’s attorney to Ensslin’s lawyer said Radtke had “chosen not to proceed further with the special permit application at this time.” However, the letter also said Radtke was waiving the contract’s special-use permit condition and that he was “ready, willing, and able to close the transaction on June 15, 2022, time being of the essence.”

For Ensslin’s “anticipatory repudiation and other breaches” of the contract, like his withdrawal of support for, “and/or active lobbying against,” Radtke’s special-use permit application, the filing states, Radtke is seeking damages, attorney’s fees, and an order from the court that Ensslin “be ready, willing, and able” to close on the sale within 30 days of any court action. 

Ensslin did not respond to a request for comment. 

Radtke’s court papers state, initially, the final sale of the property was “explicitly made contingent upon” on him obtaining the special-use permit, and that Ensslin had signed a document supporting the permit application, which the filing argues had explained what Radtke wanted to do with the parcel. 

For his part, Ensslin has said he was never given the full picture of Radtke’s plans for the property, which has been unpopular with his neighbors.

“It’s not very complicated. He never told me his true intention for what he wanted to do on the land,” Ensslin told The Enterprise in April.

The September court filing states Ensslin either knew or “should reasonably have known” that Radtke was the owner of one the area’s largest “commercial hauling, land clearing, and heavy-equipment companies,” and Radtke had planned to use the property for his business after the deal had closed. 

The document Radke referred to in his filing was a permit from the Guilderland Highway Department for a driveway and permission to drive his commercial trucks on the largely rural Frederick Road. 

The highway permit said the property would:

— Be used to store roll-off containers, heavy equipment, and trucks; 

— Have trucks “in and out several times, just twice (leaving and coming back) and/or not leaving at all”; 

— Have hours of operation from 6 a.m. to 6 p.m.; and

— Sometimes have material deliveries.

Radtke waived the special-use permit clause of the contract in April, and notified Ensslin he was prepared to close on the agreement “on a mutually convenient date,” according to court papers. Ensslin’s attorney responded that he “clearly and unequivocally repudiated the Contract” due to Radtke’s contractor yard proposal, which hadn’t been “agreed upon by the parties,” the filing states. 

But Radtke argued Ensslin was just bowing to criticism “from certain residents” who’d opposed his project; the town put Radtke’s application on an indefinite hold after it was notified Ensslin had withdrawn his support for the proposal, court papers state.