Motion for Leave to Amend Pleadings in Village Green At Sayville Llc v. The Town Of Islip, The Town Board Of The Town Of Islip, The Planning Board Of The Town Of Islip, The Building Department Of The Town Of Islip, The Town Engineer Of The Town Of Islip| Trellis.Law

On March 13, 2023 a Exhibit,Appendix was filed involving a dispute between Village Green At Sayville Llc, and The Building Department Of The Town Of Islip, The Planning Board Of The Town Of Islip, The Town Board Of The Town Of Islip, The Town Engineer Of The Town Of Islip, The Town Of Islip, for Special Proceedings - Other (NT) in the District Court of Suffolk County.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
–––––––––––––––––––––––––––––––– x
VILLAGE GREEN AT SAYVILLE, LLC, :
: Index No.:
Plaintiff, : 17-cv-7391-DRH-ARL
:
-against- :
: AMENDED
THE TOWN OF ISLIP, THE TOWN BOARD OF THE : COMPLAINT
TOWN OF ISLIP, THE PLANNING BOARD OF THE :
TOWN OF ISLIP, Angie M. Carpenter, Steven J. Flotteron, :
Trish Bergin Weichbrodt, John C. Cochrane, Jr. and Mary :
Kate Mullen, individually and in their official capacity as : Jury Trial Demanded
Members of the Town Board of the Town of Islip, Edward :
Friedland, Kevin Brown, Anthony Musumeci, Joseph :
DeVincent, Donald Fiore, Daniel Deluca and Michael :
Kennedy, individually and in their official capacity as :
Members of the Planning Board of the Town of Islip. :
:
Defendants. :
–––––––––––––––––––––––––––––––– X

Plaintiff Village Green at Sayville, LLC (“Plaintiff”), by and through its attorneys, Law

Offices of Mark A. Cuthbertson, as and for their Complaint against defendants the Town of Islip

(“Town” or “Islip”), the Town Board of the Town of Islip (“Town Board”), the Planning Board

of the Town of Islip (“Planning Board”), Angie M. Carpenter, Steven J. Flotteron, Trish Bergin

Weichbrodt, John C. Cochrane, Jr., Mary Kate Mullen, Edward Friedland, Kevin Brown,

Anthony Musumeci, Joseph DeVincent, Donald Fiore, Daniel Deluca and Michael Kennedy,

(collectively “Defendants”), alleges as follows:

NATURE OF ACTION

1. Plaintiff brings this action against Defendants pursuant to the Fair Housing Act of

1968, 42 U.S.C. § 3601 et. seq. (“FHA”), the Civil Rights Act of 1866, 42 U.S.C. §§ 1981-82,

the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Civil Rights Act of 1964, 42 U.S.C. § 2000d,

the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Constitution

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of the United States, and New York Executive Law (“N.Y. Exec. L.”) § 296 for Defendants’

unlawful actions disallowing, delaying, blocking, and otherwise interfering with Plaintiff’s

attempts to construct a housing development that, by virtue of applicable local law, will include

affordable housing units in Sayville, New York, a hamlet area within the Town of Islip in

Suffolk County. Plaintiff seeks a declaratory judgment, permanent injunctive relief,

compensatory damages, punitive damages, attorneys’ fees, and costs as a result of Defendants’

unlawful behavior.

2. This action arises out of a pattern of discrimination on the basis of race, ethnicity

and familial status by Defendants and the exclusion of African-American, Hispanic and other

racial and ethnic minority families (“Minorities”) from living in the overwhelmingly white

hamlet of Sayville.

3. Plaintiff is the owner of certain property located at the South-East Corner of

Sunrise Highway and Lincoln Avenue, and identified on the Suffolk County Tax Map as #500-

258-3-1 ("Property"). Plaintiff sought to develop the Property into apartments with a required

20% affordable housing component known as the Village Green at Sayville (“Project”).

4. In 2006, the Town Board agreed to re-zone the property to Residence CA, but its

approval was conditioned on Plaintiff accepting certain covenants and restrictions (“C&Rs”)

that, among other things, only permitted condominiums owned by dwelling unit owners and

thereby prohibited apartments leased to renters even though apartments are permitted as of right

in the Residence CA zoning district. Town Code §68-166(A). The C&Rs also required

connection to an off-site sanitary treatment plant (“STP”). However, connection to an STP

became impossible, in part due to the Town and local school district’s refusal to grant a required

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easement and the Town’s subsequent approval of a project that utilized the remaining capacity of

the only off-site STP to which Plaintiff could connect.

5. Plaintiff filed an application in May, 2014 to modify the C&Rs to eliminate both

the covenant requiring condominiums and the covenant that required an off-site STP to allow the

STP to be constructed on the Property.

6. The Town has recognized its acute shortage of affordable rental housing, and has

made construction of such housing a purported goal. However, when considering Plaintiff’s

application, the Town abandoned this purported goal and caved in to hostile opposition from

Sayville residents. During the contentious public hearings before the Town Board and Planning

Board, it was clear that the opposition’s predominant motivation was animus towards Minorities.

In its public remarks and communications with the Town, the opposition frequently referred to

“Section 8,” “the Projects,” and other ethnically and racially charged terms based on the high

possibility that some of the apartments would be occupied by Minorities.

7. At the public hearing in which the Town Board considered Plaintiff’s application,

the hostility was such that the Town Supervisor had to threaten to suspend the meeting. Among

the comments evidencing animus to Minorities were the following:

As a child, I was born in Brooklyn. I lived in the projects. It was beautiful when we
started living there. Gorgeous. But then Section 8 came in. It went from a beautiful
area to a war zone. It looked like Iraq.
…
We don’t know what type of element is going to be moving into these apartments and
what they’re going to leave behind” cut off “…going to be any drug activity, crime,
prostitution, murder…It’s going to be the murder capital of Suffolk. (emphasis
supplied).

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8. Through its actions and inaction, the Planning Board and the Town Board

ultimately capitulated to and adopted the views of the angry mob that attended its public

meetings and petitioned them.

9. If there was any doubt that the Town’s actions had the effect perpetuating ethnic

and racial segregation one need look only to the Town Board agenda on the night the Project was

denied. On the very night that the Town Board denied Plaintiff’s application, it unanimously

approved the application of Renzon Concepcion to modify a similar C&R that required 30

condominium units to instead allow 44 rental apartments. A copy of the modified C&Rs is

attached hereto as Exhibit A.

10. Like Plaintiff, Renzon Concepcion was a developer that owned undeveloped real

property in the Town that was zoned Residential CA and was subject to a C&R that required

condominiums and prohibited apartments. Also like Plaintiff, Renzon Concepcion obtained a

report from the Planning Department recommending approval of its application. The key

difference was that Renzon Concepcion’s apartments are located in the majority-minority

hamlet of Brentwood.

11. As set forth below, and by the Town’s own admission, Brentwood is an area of

Town with a high concentration of Minorities and low-to-moderate income individuals. By

prohibiting rental apartments in Sayville and approving them in Brentwood, the Town Board has

perpetuated racial and ethnic segregation in the Town.

12. In denying Plaintiff’s application, Defendants refused to allow apartments, which,

it bears repeating, are allowed as of right in the Residence CA zoning district. Moreover,

Defendants have prevented any construction on the Property by refusing to modify the C&R that

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requires an off-site STP, a condition that, due to the Town’s own actions, it became impossible

for Plaintiff to satisfy.

13. Defendants’ conduct in connection with the Project has prevented Minorities from

obtaining housing in the overwhelmingly white hamlet of Sayville, thereby perpetuating the

pattern of segregation in the Town and confining Minorities to highly segregated areas such as

Brentwood, Bay Shore and Central Islip. As such, Defendants’ actions have the purpose and

effect of violating the federal and New York State fair housing and civil rights laws cited herein.

JURISDICTION AND VENUE

14. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and

2201 and 42 U.S.C. § 3613(a).

15. Venue is proper in this case pursuant to 28 U.S.C. § 1391 because the events

giving rise to these claims occurred in this District, the parties are incorporated in this District,

and the Property at issue is situated in this District.

THE PARTIES

16. Plaintiff is a New York Limited Liability Company and the owner of the Property.

The Property is located in the hamlet of Sayville, which is within the corporate limits of the

Town of Islip, Suffolk County, New York.

17. Defendant Town of Islip is a municipal corporation organized under the laws of

the State of New York, having its principal offices located at 655 Main Street, Islip, N.Y. 11751.

18. Defendant Town Board is the elected governing body of the Town from which all

Town offices responsible for all development in the hamlet areas of Islip derive their authority.

The Town Board maintains offices at 655 Main Street, Islip, N.Y. 11751.

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19. Defendant Planning Board is a quasi-independent board whose members are

appointed by the Town Board and which makes recommendations to the Town Board concerning

applications to modify covenants. The Planning Board maintains offices at 655 Main Street,

Islip, N.Y. 11751.

20. Defendants Angie M. Carpenter, Steven J. Flotteron, Trish Bergin Weichbrodt,

John C. Cochrane, Jr. and Mary Kate Mullen are members of the Town Board of the Town of

Islip. They are sued in the individual and official capacities as members of the Town Board.

21. Defendants Edward Friedland, Kevin Brown, Anthony Musumeci, Joseph

DeVincent, Donald Fiore, Daniel Deluca and Michael Kennedy are members of the Planning

Board of the Town of Islip. They are sued in the individual and official capacities as members of

the Planning Board.

BACKGROUND

I. Sayville and the Town of Islip

22. The Property is located in Sayville, a hamlet within the Town of Islip. While the

Town has a substantially larger minority and foreign-born population than Suffolk County, the

Town is nonetheless highly segregated based upon race and national origin, and Sayville is one

of the starkest examples of this pattern of segregation.

23. The pattern of segregation is clearly borne out in the data gathered by the United

States Census Bureau.1 Whereas non-Hispanic whites accounted for 67.5% of the population in

1
A table comparing the demographic information for Suffolk County, the Town of Islip, and Sayville, based upon
the 2010 United States Census, 2016 American Community Survey, and other sources prepared by the United States
Census Bureau, can be found at https://www.census.gov/quickfacts/table/PST045216/36103,3610338000,3665409.
As this table is automatically updated by the U.S. Census Bureau when new data becomes available, the statistics
cited herein refer to those available as of August 6, 2018. This and any other publicly available information
provided by the United States Census Bureau will be cited herein as the “U.S. Census Bureau.”

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Suffolk County and 56.3% of the population of the Town, non-Hispanic whites were 90.6% of

the population in Sayville.

24. Similarly, the foreign-born population of Sayville is only 5.3%, compared to

15.4% for the County of Suffolk and 20.2% for the Town of Islip. In addition, 31.6% of the

Town’s population, or nearly a third of its residents, speak a language other than English at

home, compared to only 6.6% of residents in Sayville.

25. The pattern of racial and ethnic segregation in the Town is not limited to Sayville.

A report prepared by the Town of Islip Community Development Agency (“CDA”), entitled

“2015 Analysis of Impediments to Fair Housing Choice” (“2015 Report”)2, includes figures

showing census areas with minority concentrations above the Town average. These figures show

that the Town’s African-American and Hispanic populations are overwhelmingly concentrated in

roughly two dozen census tracts in the northern and western areas of the Town, predominantly in

the hamlets of Brentwood, Bay Shore, and Central Islip. The combined African-

American/Hispanic population in these census tracts regularly exceeds 75% of the population.

This stands in stark contrast to areas in the eastern area of Town like Sayville, which is over 90%

non-Hispanic white.

26. The 2015 Report also identifies areas with concentrations of low-to-moderate

income households, defined as areas where the median family income falls below 80% of the

Nassau-Suffolk Metropolitan Statistical Area Median Household Income. These areas

correspond to those with disproportionately high concentrations of African-American and

Hispanic residents, demonstrating a correlation between race and income in the Town.

2
Town of Islip Community Development Agency, “Town of Islip, Suffolk County, New York: 2015 Analysis of
Impediments to Fair Housing Choice,” March 2015, http://www.islipcda.org/reports.asp.

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27. The correlation between race and income significantly contributes to the disparate

impact that the lack of affordable housing, particularly affordable rental housing, has on

Minorities in the Town. Moreover, the lack of affordable housing is an acute problem in

Sayville, where the median gross rent of $1733 is roughly 15% higher than in Suffolk County

($1589) and the Town ($1560) at large. Similarly, the median value of an owner-occupied

dwelling is $432,700, versus $376,000 for Suffolk County and $350,100 for the Town, with

correspondingly high monthly costs for homeowners ($3,082 in Sayville, compared to $2,723 in

Suffolk County and $2,641 in the Town).

28. By requiring condominiums in place of rental apartments, the Town has placed

significant barriers to Minorities that seek housing in Sayville. Based upon an estimated market

value of $300,0003 for condominiums in Village Green, potential buyers would likely be

required to make a down payment of more than $50,000, in addition to paying any closing costs.

In contrast, the costs associated with the median rental apartment in Sayville, consisting of a

security deposit and the first month of rent in advance, would be less than $3,500. Thus, given

the correlation between race and income described above, the condominium requirement has the

effect of pricing out potential Minority occupants.

29. Given this affordable housing crisis, which the Town has acknowledged, the

Town claimed in the 2015 Report that it was committing itself to increasing housing stocks and

prioritizing affordable housing projects in areas like Sayville that have high housing cost

burdens. However, this purported commitment has not been matched by action when local

residents make their sentiments about Minorities known.

3
This reflects the market rate as described during the May 4, 2016 Planning Board hearing. At the time the
restrictive covenant requiring condominiums was approved, the estimated value was $500,000 per unit, posing an
even higher barrier to entry for Minorities.

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30. Further exacerbating the situation is that the Town no longer acknowledges that

local opposition undermines affordable housing projects. The 2010 equivalent of the 2015

Report specifically identified “Local Opposition (NIMYBism)” as the second of the six most

significant impediments to fair housing in the Town, stating that “[t]his attitude, which seriously

affects the availability of housing for people in these groups [referring to “families with children… or

lower-income minorities”], continues to be held by some residents of the Town of Islip and is one of

the most difficult challenges the Town encounters in promoting fair housing objectives .”

31. Somehow, almost magically, this factor has dissipated in only five years, as the

2015 Report explicitly omitted local opposition from its list of impediments to fair housing,

claiming that there is “no substantive evidence that patterns of community resistance have

impacted the development of affordable housing in the Town of Islip.”

32. The reason proffered in the 2015 Report for omitting local opposition as an

impediment to fair housing is that the “CDA has constructed five homes over the past five-year

period outside the target areas with no community resistance….” It is beyond naïve to think that

the construction of a mere five homes could justify the Town’s insistence that NIMBYISM has

somehow vanished. Given this faulty line of thinking, it is no surprise that the Town continues

to suffer from a high degree of segregation despite its alleged commitment to pursuing remedial

measures. Moreover, the Town’s failure to acknowledge the impact of NIMBYISM in the 2015

Report is particularly curious given the significant impact it had on the Plaintiff’s application.

33. The U.S. Census Bureau data also demonstrates how the Town’s use of age-

restricted housing has helped maintain the predominantly white character of Sayville. As a

proportion of its housing stock, Sayville has roughly the same percentage of rental units as the

Town at large, with owner occupied dwellings accounting for 78.5% of units in Sayville

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compared to 76.7% of units for the Town. However, persons over the age of 65 (“Seniors”)

account for 18.7% of Sayville’s population, compared to only 12.6% of the Town.

34. Moreover, Seniors are only a small percentage of the population in areas with a

high concentration of Minorities. For example, in Brentwood, the largest majority-minority area

in the Town, Seniors are only 8.6% of the population, even though Brentwood has a higher

proportion of rental apartments than the Town (only 71.2% of its units are owner-occupied).

35. In sum, while rental apartments in general are statistically more likely to be

occupied by Minorities than owner-occupied dwellings, age-restricted rental housing is more

likely to be occupied by white residents and maintain the segregated nature of a white area.

36. By requiring C&Rs that only allow condominiums, or set aside a large percentage

of units for age-restricted housing, which, upon information and belief, are C&Rs commonly

required by the Town in connection with the development of multi-family dwellings under the

Residence CA Zone in predominantly white areas of the Town, the Town has prevented

construction of the type of affordable and market-rate rental apartments that Minorities are

disproportionately likely to occupy. This serves to exclude Minorities and perpetuate the pattern

of segregation that currently exists in the Town.

II. Plaintiff’s Initial Proposal To Construct Village Green in 2006

37. In 2006, the Town Board granted Plaintiff’s application for a change of zone of

the Property from Business One to Residence CA. The Residence CA zoning designation in the

Code of the Town of Islip (“Town Code”) explicitly allows both single family attached dwellings

(which include condominiums) and apartments as of right.

38. The Town Board’s approval in 2006 was subject to Plaintiff agreeing to nearly

two dozen C&Rs, including requirements that (1) the development would consist only of

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ownership condominiums and (2) that Plaintiff would connect to an off-site STP, the only

feasible option for which was at Sayville Commons and would require Plaintiff to lay

approximately 7,000 feet of sewer pipe (which equates to 1.3 miles of pipe).

39. At the time of the adoption of the change of zone for the Property in 2006, the

Town Board issued a Notice of Determination of Non-Significance under New York State

Environmental Quality Revision Act (“SEQRA”), which signified that the Project, as proposed at

that time, would not have a significant effect on the environment. It further stated, with respect

to traffic, that the total trips generated by the development were significantly less than permitted

under an as of right development. Finally, the notice noted that a review by both the Town and

NYSDEC found that the potential impacts on freshwater wetlands were not significant.

40. Subsequent to the Town Board’s approval of a change of zone, in December

2006, the Town Engineer granted the Plaintiff Site Plan Approval, which authorized construction

of 38 condominiums on the Property. However, Plaintiff was unable to begin construction due

to its difficulty in obtaining financing for the Project. This difficulty resulted from Plaintiff’s

inability to satisfy the condition requiring an off-site STP, and was later exacerbated by the

subsequent economic and housing market crash of the Great Recession in 2008.

41. Despite the onerousness of this off-site STP requirement, Plaintiff spent years

seeking the necessary easements to connect to Sayville Commons. Plaintiff was able to purchase

an easement from one individual. However, several nearby landowners refused to grant the

easements needed. The Sayville Union Free School District was approached about two potential

easements, one running along the teacher’s parking lot and another under an open field at the

Sayville Middle School, but refused to consent despite Plaintiff agreeing to do the work during

the summer when the school was closed. Similarly, the Town itself refused to grant an easement

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over a Town road even though it was necessary to meet the requirement that the Town itself had

imposed.

42. Even if Plaintiff could now obtain the necessary easements, use of the Sayville

Commons STP is no longer viable as its capacity has been allocated to another development, the

Bristal, which was approved by the Town. As such, compliance with this C&R is impossible,

due in no small measure to the actions of the Town, and it has the effect of prohibiting the

construction of any multi-family dwellings on the Property be they apartments or condominiums.

III. Plaintiff’s Efforts to Modify the C&Rs

43. For Plaintiff to develop the Property, it was necessary for it to seek a modification

of certain C&Rs imposed as part of the 2006 change of zone. Beginning in May, 2013, Plaintiff

held several pre-submission meetings with the Planning Department, and after making a number

of revisions to address the Planning Department’s concerns, Plaintiff filed its application to

modify the C&Rs in May, 2014.

44. Plaintiff initially sought to construct 64 apartments instead of 38 single family

dwellings.4 At that time, the Town Code required at least ten percent (10%) of the dwelling units

to be set aside as affordable as defined under the Town Code, thus virtually guaranteeing that a

portion of the Project would be made available to Minorities and low-to-moderate income

individuals. Town Code § 68-3 was amended on May 21, 2013, while the Project’s approval

was still pending, to require at least twenty percent (20%) of the dwelling units be set aside as

affordable units. This remains the applicable requirement.

45. The Property is conveniently located on Sunrise Highway, which is a major

east/west artery. As the Planning Department noted in its analysis of the Project, the site is

4
The number of apartments was later reduced to 59 units (58 rental units and 1 superintendent unit), and further
modified to require 50% senior citizen and 50% non-age restricted units to mollify opponents of the application.

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appropriate for apartments in that it acts as a transition from Sunrise Highway and its nearby

commercial uses to existing single family dwellings to the south and east. This analysis further

noted that Plaintiff’s application was very similar in design to the 2006 approval of

condominiums. The same 85 to 105-foot buffers to the south and east were proposed with only a

slight reduction in the amount of land to remain either in its natural state or landscaped (71.5% to

now 70%, which was due to the provision of an on-site STP), meaning approximately 5.27 of the

7.29 acres that comprise the Property would remain natural or be landscaped. The analysis

further noted that buffers provided were 85 to 100 feet (where 25 feet was required) and although

the number of units has increased by 21, the building area has remained almost the same going

from 62,318 sf. to about 61,993 sf.

46. Plaintiff was seeking only a modification of C&Rs; not a rezoning. The Property

was already zoned Residential CA, a zoning designation that permits apartments as of right. The

only thing that prevented apartments from being built was the C&R requiring condominiums.

The proposed apartments were to be of modest size with walk-in and standard closets, tile and

hardwood flooring, custom designed bathrooms, open concept kitchens and living areas, solid

surface and granite countertops, full size appliances, and a washer/dryer in every unit.

47. Ultimately, the Project would have helped integrate and otherwise deconcentrate

Minorities in the Town and would have presented an opportunity for Minorities to live in

Sayville and outside the segregated areas of Brentwood, Bay Shore and Central Islip.

48. Town Code § 68-31(B) provides that the Town Board, by resolution, may refer an

application, including applications to amend restrictive covenants pursuant to Town Code § 68-

36, to the Planning Board for a report thereon, and shall fix the date and time of a public hearing

on the application. The Town Board adopted such a resolution referring Plaintiff’s application to

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the Planning Board, and scheduled a public hearing on the application for November 13, 2014.

This hearing would normally form the basis for the Planning Board’s report on whether the

Town Board should approve or reject Plaintiff’s application. However, the sequence of events

that followed were anything but normal.

49. Prior to the public hearings for Plaintiff’s application, Sayville residents

submitted petitions and voiced opposition to Plaintiff’s application. Among the negative

comments were those related to the Sayville Motor Inn, an adjoining property over which

Plaintiff has no control and whose status has no bearing on the merits of Plaintiff’s application.

However, this did not stop the opponents of Plaintiff’s application from using the status of the

Sayville Motor Inn’s guests as a proxy for their discriminatory opposition to the Plaintiff’s

application.

IV. Planning Board Hearing

50. At the Planning Board’s public hearing, the residents of Sayville immediately

took to the ramparts and prepared for battle, making their opinions known that approving the

project would diminish quality of life and attract lower-income families and transients.

51. Among the comments made by the vocal and hostile crowd at the hearing were

the following:

(a) “When you change the actual demographics of the area, you degradate [sic]
everything that happens in an area with apartments as opposed to single family
homes”;

(b) “Now it’s going to apartments, which is going to kill the area”;

(d) “[t]hey keep stressing how lovely the buildings are… But we are not talking about
what’s on the outside. We’re talking about what might be on the inside.”
(emphasis supplied)

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(e) “If they can’t rent out the apartments, what do you think is going to happen?
They’ll go to Section 8.”

45. Opponents of the application also suggested the modified Project would increase

traffic, harm the environment, and negatively impact of property values. Little evidence was

given in support of these claims, yet Plaintiff was still required to perform a variety of costly and

time-consuming studies on these issues, as well as make amendments to its proposal to satisfy

the Town. As noted above, in its review of the Property in 2006, which by the Town’s own

admission was similar to the current proposed Project, the Town indicated there were no issues

involving traffic or wetlands.

46. The Planning Board Chairman, who had to admonish the crowd for shouting out

while Plaintiff’s representative made its presentation, concluded the hearing by stating “We’ve

heard your comments and they are very common issues we hear. There is always the issue of

changing character of neighborhood: homeownership v. rental….”

47. The hostility and animus was not limited to the speakers at Town Hall. The Town

was deluged with correspondence and petitions that were rife with the same type of incendiary

remarks. The petitions contained hundreds of signatures and stated that among the reasons its

signatories were opposed to the Project was that “these high-density rentals will not integrate

with the nature and character of the surrounding properties”.

48. After the public hearing before it, the Planning Board was required to hold a vote

on Plaintiff’s application. However, it was not until May 4, 2016, nearly 18 months after the

initial public hearing, that the Planning Board considered a resolution to grant the application.

49. At that meeting, Planning Department staff gave a report to the Planning Board

which explained that apartments were appropriate for the site and that the concerns expressed in

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opposition to the application (traffic impacts, wetlands, diminution of property values, and

complaints regarding the Sayville Motor Inn) had all been satisfactorily addressed by Plaintiff. It

further indicated that a short environmental assessment form had been completed pursuant to

SEQRA and “no significant adverse environmental impacts are anticipated.”

50. Based upon the information provided by Plaintiff and certain revisions to the

proposal, the Planning Department staff concluded that “[s]hould the Board grant this

application, Planning would recommend approval subject to the attached covenants and

restrictions.”

51. Despite the passage of almost 18 months since the public hearing, it was clear that

the words of the angry mob were still ringing in the ears of the Planning Board Members. After

the Planning Department staff presented their report, Defendant Planning Board Member Daniel

DeLuca immediately stated, “not to sound like a broken record, but more apartments?”

52. This was followed by Defendant Planning Board Member Donald Fiore, who

commented that apartments were not a fit in this area (even though the Town Code permits them

as a matter or right and the Planning Department staff had just delivered a report indicating they

were appropriate) because, in his words, the “apartments are not owners they are renters,

and…[there] is a constant flow of people moving in and out of there.”

53. Ultimately, the Planning Board failed to pass the motion recommending approval

of the application to the Town Board on a 3-3 vote, with the Vice Chairman recusing himself,

and the vote was deemed a non-action. Notably, while the Vice Chairman ultimately recused

himself, he nonetheless participated in the Board’s deliberations and raised a number of pointed

questions about the application.

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V. The Town Board Public Hearing

54. Due to the Planning Board’s non-action, the Town extracted additional

concessions from Plaintiff, including:

1. A reduction from 64 units to 59 units (58 rental units and 1 superintendent unit).

2. A change from all of the units being non-age restricted to half of the units being

for senior citizen/half for non-age restricted individuals.

3. The addition of a clubhouse/common area with a fitness center and walking trail

around the complex.

These changes were agreed upon and made by Plaintiff despite the fact that the Planning

Department had issued a staff report finding that Plaintiff had adequately addressed all legitimate

concerns.

55. Thereafter, the Town Board held a public hearing on Plaintiff’s application on

June 30, 2016. During the hearing, the Town Board room could not accommodate the crowd

that had an interest in Plaintiff’s application, and the Town’s Fire Marshall required part of the

crowd to wait in the hallway, which was also filled.

56. During the course of the public hearing, the crowd was, like at the earlier

Planning Board hearing, both vocal and hostile. Members of the crowd frequently shouted and

interrupted the proceedings and the Town Supervisor repeatedly admonished the crowd to allow

Plaintiff’s representatives and the other speakers to be heard. At one point, the Town Supervisor

even threatened to recess the hearing so that disruptive members of the audience could be

removed.

57. While a number of opponents cited the typical NIMBY complaints (increased

traffic, reduced property values, environmental concerns), it was clear that many who opposed

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Plaintiff’s application did so based upon the race, familial status, or national origin of the people

they believed would occupy many of the units. In addition to the outrageous and inflammatory

remarks noted above in paragraph 7, several members of the crowd spoke in opposition to

Plaintiff’s application using extreme language or terms with racial connotations, frequently

referencing “Section 8” and “transients.” Moreover, the use of these terms was often linked to

crime, drugs, prostitution, and other illegal activity, as opponents attempted to tie Plaintiff’s

application to the Sayville Motor Inn.

58. Another speaker explicitly threatened political retaliation by Sayville residents

against the Town Board members, stating that “[t]he people who sit behind me will not forget if

this project is approved.” Ultimately, the Town Board took heed of this warning and caved in to

the public opposition, despite the clearly improper and discriminatory views advanced by the

opposition.

VI. Plaintiff’s Attempts to Obtain a Decision From The Planning and Town Boards

59. On November 3, 2016, the Plaintiff’s application was placed on the Planning

Board agenda as a “Recommendation Item,” but consideration of the application was adjourned

to November 16, 2016 because, upon information and belief, one of the most outspoken

opponents of the application, Ms. Fatigate, was out of town.

60. At its November 16, 2016 meeting, the Planning Board met with neighbors in

attendance and reviewed the Town Board’s recommended changes. However, the Planning

Board failed to vote on the application.

61. The next day, November 17, 2016, the Town Board considered a resolution for

approval, which was accompanied by the Planning Department staff analysis that noted, among

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other things, the use of property as apartments was appropriate and that the concerns brought up

at the public hearings had already been adequately addressed by the Plaintiff.

62. There was once again a large group of the opposing neighbors in attendance, and

they were cl

Case Info

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Kathy G Bergmann Track Judge’s New Case

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Document Filed Date

April 03, 2023

Case Filing Date

March 13, 2023

County

Parties

DELUCA, MATTHEW JOSEPH Attorney for the Plaintiff
FACTOR, LILIA Attorney for the Defendant
PERILLO, LISA ANGELA Attorney for the Defendant
THE BUILDING DEPARTMENT OF THE TOWN OF ISLIP Defendant
THE PLANNING BOARD OF THE TOWN OF ISLIP Defendant
THE TOWN BOARD OF THE TOWN OF ISLIP Defendant
THE TOWN ENGINEER OF THE TOWN OF ISLIP Defendant
THE TOWN OF ISLIP Defendant
VILLAGE GREEN AT SAYVILLE LLC Plaintiff
TARYN JEWELL Attorney
MICHAEL WALSH Attorney

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Exhibit,Appendix: Village Green At Sayville Llc v. The Town Of Islip, The Town Board Of The Town Of Islip, The Planning Board Of The Town Of Islip, The Building Department Of The Town Of Islip, The Town Engineer Of The Town Of Islip

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