The Smithtown Board of Zoning Appeals has appealed a Suffolk County Supreme Court judge's decision in favor of a business owner who applied to build a carport topped by solar panels after receiving variances for the project.

Paul Hennings, attorney for the town zoning board, said he filed a notice of appeal in September to preserve the board's right to move forward with the appeal process.

"If the carport was part of the application a year earlier, the zoning board would likely not have been as ready to give him the relief that he requested the first time," said Hennings referring to Itai Vishnia, co-owner of AMVI Realty LLC, which owns an office building at 88 Terry Rd.

Hennings said the board was also concerned with the steel design of the carport, which would cover five spaces and resembled "those kinds that we see at the [H. Lee] Dennison building and at the courthouse in Riverhead" -- something not consistent with the surrounding neighborhood -- and asked AMVI Realty to come up with a reasonable alternative, such as designing it to look more residential.

Suffolk County Supreme Court Justice William B. Rebolini ruled in August that the BZA's finding that application approval "would produce an undesirable change in the character of the neighborhood is arbitrary and capricious," since there was no dispute that the carport was allowed in the property's neighborhood business zone. He ordered that the BZA's decision be vacated and that the town building department issue a permit for the solar carport.

In January 2013, the zoning board denied AMVI Realty's application to modify a previously approved variance to permit a 767-square-foot steel carport with solar panels, Rebolini's decision said.

At the January hearing, senior town planner Peter Hans said the structure was compliant with the town zoning code, but a newly adopted provision in the code required AMVI Realty to go back before the board because it was a modification of variances the BZA granted the prior year, records show. Rebolini said the BZA incorrectly interpreted this portion of the town code.

"We were pleased that the judge saw it our way that this was not a situation that required the property owner to pursue a further variance," said Vishnia's attorney, Lewis A. Bartell, of Garden City. "The unfortunate thing is that the board is really imposing their personal beliefs in place of the evidence that was given."

Zoning board members who didn't like the steel look of the carport had suggested solar panels be put on the existing office building's gabled roof, which Bartell said "does not have sufficient surface area to support an effective solar energy system."

The solar carport would produce about 11,000 kilowatts each hour, said Ronnie Mandler, owner of Best Energy Power in Valley Stream, who was to install it.Vishnia said he lost thousands of dollars in rebates offered by LIPA to use solar energy and reduce his energy costs. "That's why we're upset about the whole thing," he said of the zoning board's appeal.

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