Ruling on Hempstead zoning code repeal reopens door for developer's apartment plan

The Town of Hempstead’s repeal of a transit-oriented development zoning code last year is null and void because it failed to comply with state law, a state Supreme Court judge ruled last week, clearing the way for a proposed apartment complex in Inwood to begin the approval process.

Commack-based developer Heatherwood Communities LLC had planned to move forward with the $154 million project before the repeal of the 2019 zoning code by the Hempstead Town Board in November.

The code had allowed developers to build multifamily housing through an expedited review process in parts of Inwood and Lawrence around the Long Island Rail Road stations. The town argued in court filings the repeal was necessary to address concerns about safety and traffic as well as insufficient public input in the approval process for projects. 

When the repeal was initially contemplated earlier last year, it included a grandfather clause that would have allowed Heatherwood to move forward with the project. Last June, the town submitted its proposed repeal to the Nassau County Planning Commission, which gave its assent.

In November, however, the repeal the town board subsequently approved eliminated the grandfather clause. 

Heatherwood filed two lawsuits against the town last year. One sought to compel the town to move forward with the application for its project and the other sought to nullify the repeal of the code.

Judge Conrad Singer, in state court in Mineola, ruled last week that modifying the repeal without seeking a new approval from the county board violated state law.

“Removing the ‘grandfathering in’ exception ... changed the resolution fundamentally and eliminated the basis of the [Nassau County Planning Commission]  recommendation,” Singer wrote in his decision. This “defect” rendered “the adoption of the repeal of the TOD ordinance … void as a matter of law.”

Heatherwood Communities said in court filings the rezoning in 2019 was its primary catalyst to invest in the project and to spend more than $30 million, primarily on acquiring properties on Wanser and Bayview avenues in Inwood in 2021, Newsday previously reported. The proposal included 309 units of housing in a five-story building with approximately 400 ground-level parking spaces.

“Although we’re disappointed that the situation required us to take legal action, we’re pleased that our development rights have been restored by the court and we very much look forward to working with the town to find a resolution that works for all parties,” the developer’s attorney, Daniel Shapiro, of Uniondale-based Ruskin Moscou Faltischek PC, said Monday.

In a separate decision, Singer ordered the town to begin its review process of the project for which Heatherwood filed an application in 2022. That process begins with a review by a town-appointed design review committee under the zoning code. Singer ordered the town to form the committee and to “review and act” upon the developer’s application.

In a statement Monday, John Maccarone, town attorney, said, "We are reviewing the court's decision and will act accordingly."

On Tuesday, the town board appointed the design review committee to comply with the court order.