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Suffolk sues over Foley permit denial

Nanci Dallaire, a nurse at the John J.

Nanci Dallaire, a nurse at the John J. Foley Nursing home in Yaphank, addresses Suffolk County legislators in Riverhead last year. Dallaire opposed selling the facility. (Aug. 21, 2012) Credit: James Carbone

Suffolk County attorneys are fighting in State Supreme Court to reverse a Brookhaven zoning decision that bars prospective buyers of the John J. Foley Skilled Nursing Facility from operating it as a private nursing home.

The county filed its lawsuit late last month claiming that the town Zoning Board of Appeals rejected the county's application for a special permit with "absolutely no basis and for what appears to be purely political motivations." The suit also charged the board with "gross negligence, bad faith and/or malice in making its decision."

The lawsuit follows a 6-0 vote by the zoning board in late January to reject a special-use permit. The board said the county had failed to show "an unreasonable hardship" in its arguments for the Yaphank nursing home to continue operation under private owners. Suffolk has a contract to sell Foley for $23 million to Samuel and Israel Sherman.

County spokeswoman Vanessa Baird-Streeter said the administration filed suit "to keep options open," so a sale still could take place. The county is moving to close the facility, but a sale would prevent relocation of residents and keep county workers in their jobs.

Paul DeChance, zoning board chairman, declined to comment.

The Brookhaven zoning board found that Suffolk had no legislative authority to act on behalf of the buyer, and that the county failed to demonstrate that it could not "realize a reasonable rate of return" because in recent years it had allowed the 264-bed facility to remain only three-quarters full.

The county said the board misinterpreted the sale contract, which was approved by the county legislature. The suit says Suffolk lost $76 million between 2007 and 2011 on the nursing home, and that the county faces "a unique and significant hardship that warrants . . . a special use variance."

The nursing home is exempt from local zoning as a county operation. Private owners would need either to have the property rezoned or get special permits because the land is zoned for single-family homes.Brookhaven Supervisor Edward P. Romaine said he was "somewhat surprised the county did not contact us before filing suit," but declined further comment because of the pending litigation and the fact the zoning board is independent of the town board.

Suffolk Legis. John Kennedy (R-Nesconset), minority leader, said the county should not be expending any money or using staff to pursue a lawsuit because it is the buyers' responsibility to seek zoning approvals.

Despite the lawsuit's claim that Suffolk can assist purchasers with legal issues, Kennedy called the suit, "absolutely illegal, without authority and [an] unjust enrichment" of the potential purchasers.

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