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Developers sue Smithtown for OK to build 136-bed facility

Developers of a proposed assisted-living facility have filed a lawsuit against the Smithtown Board of Zoning Appeals and the town seeking zoning board approval of an application to build the 136-bed site or of court-ordered variances to allow its construction.

Smithtown-based St. Johnland Development Group, which wants to build Whisper Landing on a 12.39-acre site at Route 25A and River Heights Drive, filed the suit Sept. 25 in Suffolk County Supreme Court.

The suit, obtained by Newsday, states that the Smithtown board declined to vote on St. Johnland's special permit request -- required for assisted-living facilities -- until the town zoning board voted on St. Johnland's variance requests.

The ZBA failed to render a verdict after a June 25 hearing on the variances by the town's own statutory deadline, the suit says.

Richard I. Scheyer, attorney for St. Johnland, said the suit is being brought based on a 2003 amendment to town law. The amendment states "if an affirmative vote of a majority of all members of the board is not attained on a motion or resolution to grant a variance" within a 62-day statutory deadline, "the appeal is denied."

Because no ruling was made after St. Johnland's June public hearing, the developer's application before the zoning board "was automatically denied," the suit said.

"In short, the government has reached a position where the speed limit is zero and the law says there is no backing up," the suit said.

Smithtown Town Attorney John Zollo and ZBA attorney Paul Hennings both declined to comment, citing pending litigation.

Frank DeRubeis, town planning director, said the town's environment and waterways department is reviewing whether St. Johnland's special exception overall -- including the zoning variances -- would have a negative environmental impact or require further environmental review.

"We feel very confident that that provision of the law is not applicable, because the 62 days does not begin until a state environmental quality review act is done," DeRubeis said.

Scheyer said in an interview the town's position is "unfair" and added: "If they had an environmental issue, they should have had the information and raised it before us at the hearing. . . . You don't close a hearing and introduce new evidence afterward."DeRubeis also said that the plans submitted to the zoning board "do not appear to be consistent" with the plans submitted to the town board.

St. Johnland presented a new design at the June 25 zoning board meeting to lower the proposed building height to 35 feet from the originally planned 49 feet -- 14 feet taller than typically allowed by town zoning code -- and reduce the height of retaining walls from 12 feet to 6 feet, also to comply with town code. The developer still needs variances to build on environmentally sensitive lands, said DeRubeis.

"Once you make changes in plans for which a public hearing was done, are those change so significant to warrant another public hearing?" he said, adding that the town board will have to answer that question. "The public has a right to review these kind of things."

At the June zoning board meeting, some neighbors said they were in favor of the amended proposal, while others maintained previous concerns over noise, flooding and traffic.

Scheyer said that "political controversy" over the development has caused the town to drag its feet, adding, "The one thing they can't do [by law] is nothing at all, and that's what they're doing."

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