Motion,Ex Parte: 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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                                SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-----------------------------------------------------------------------x
In the Matter of the Application of
VILLAGE GREEN AT SAYVILLE, LLC,                                                     Index No.: 16-11060
                                                                                    Justice Assigned:
Petitioner-Plaintiff,                                                               W. Gerard Asher


for a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules,

-against-
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 AND THE TOWN ENGINEER
OF THE TOWN OF ISLIP

Respondents-Defendants.
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                        PETITIONER VILLAGE GREEN AT SAYVILLE’S
                                 MEMORANDUM OF LAW




                                                                       Respectfully submitted,
                                                                       Buzzell, Blanda & Visconti, LLP
                                                                       535 Broadhollow Rd., Suite B-4
                                                                       Melville, New York 11747


Joseph F. Buzzell
Nicole Blanda
On the Memorandum
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-----------------------------------------------------------------------x
In the Matter of the Application of
VILLAGE GREEN AT SAYVILLE, LLC,                                            Index No.: 16-11060
                                                                           Justice Assigned:
Petitioner-Plaintiff,                                                      W. Gerard Asher


for a Judgment Pursuant to Article 78
of the Civil Practice Law and Rules,

-against-
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 AND THE TOWN ENGINEER
OF THE TOWN OF ISLIP

Respondents-Defendants.
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                            PETITIONER’S MEMORANDUM OF LAW


                                     PRELIMINARY STATEMENT
          This Memorandum of Law is submitted by Petitioner, Village Green at Sayville,

LLC, (“Village Green”), in support of its Petition & Complaint in the present Hybrid

Action.
                                       STATEMENT OF FACTS

The Premises

       The Premises is located at the south-east corner of Sunrise Highway and Lakeland

Avenue in Sayville, also known as Suffolk County Tax Map # 500-258-3-1, (See, aerial photos

and tax map attached hereto as Exhibits “KK”, “LL” and “RR”.) The Premises is within the

County of Suffolk and the State of New York. The Premises is within the corporate limits of the

Town of Islip and outside of any incorporated Village.

The Premises is zoned Multi-Family “CA”.

       The “CA” Zoning District does not require age-restricted or senior citizen occupancy.

Occupancy is permissible for seniors and non-seniors alike. (See Islip Code Section 68-166.1 a

copy of which is attached hereto as Exhibit “D”.)

The “CA” Zoning District allows both apartments and condominiums as-of-right. (See Islip

Code Section 68-166.1.1 a copy of which is attached hereto as Exhibit “D”.) The Premises is

approximately 7.29 Acres in size. (See, Survey and Site Plans attached hereto as Exhibits “NN”,

“OO”, “PP” and “QQ”). It is vacant.

       It is located right on Sunrise Highway; one of the largest major access highways on Long

Island. The Premises is approximately 1029 ft. wide and has 590 ft. of frontage on Sunrise

Highway. (See, Survey and Site Plans attached hereto as Exhibits “NN”, “OO”, “PP” and “QQ”).

The Premises is generally level in grade, except on its easterly side where there is a drop of about

20 ft. to where the Premises touches Jul-Bet Dr. (See, Survey and Site Plans attached hereto as

Exhibits “NN”, “OO”, “PP” and “QQ”).
       Some adjacent neighbors on Ort Court, have illegally constructed fencing and other

improvements on the Premises. Some have installed gates so as to access the Premises for their

own purposes. (See, Photographs attached hereto as Exhibit “W”.) Some adjacent neighbors on

Ort Court have dumped debris on the Premises. (See, Photos attached hereto as Exhibit “V”.)

Some adjacent neighbors are also storing materials on the Premises. (See Photos attached as

Exhibit “X”.) Further, some adjacent neighbors have been trespassing on the Premises.

Surrounding Area

       Sunrise Highway is one of Long Island’s largest Major Highways. Sunrise Highway has

Ten (10) lanes adjacent the Premises. It also has service roads on both sides. Adjacent the

Premises on Sunrise Highway is the Sayville Motor Inn. Across Sunrise Highway are business

properties, Multi-family properties; and just behind such is a large Trailer Park. To the East,

across Jul-Bet Dr., is Business-3 property which supports Whitewater Marine, a boat dealership.

Whitewater stores boats outside and regularly has trucks and trailers drop off and pick-up boats.

To the west Across Lincoln Ave. is Sunrise Villas; a multi-family property also Zoned “CA”.

In fact, in the vicinity of the Premises are many multi-family properties Zoned “CA”; including

Saddle Rock Apartments, Saddle Cove, Sunrise Village, Sayville Commons, Fairfield and others

The Convenants

       One February 9, 2006 the Town Board approved rezoning the Premises multi-family

“CA”. The Premises continues to be “CA” today.

Apartments and condos are permitted as-of-right in the CA Zone. (See Islip Code Section

68-166.1.1 a copy of which is attached hereto as Exhibit “D”.) There is no prohibition against

the rental of the units. Any owner or every owner may rent their unit as they see fit. (See

Exhibit “C”.) Given economic and real estate conditions which existed at the time, Village
Green in its 2006 rezoning application proposed 38 Condominium Town-Homes. Village

Green’s voluntary election to pursue a Condominium in 2006 was codified in certain Covenants

and Restrictions, (“Covenants” or “C&Rs”), imposed on the re-zoning approval. (See Exhibit

“C”). Village Green had to sign the Covenants to have a hearing before the Town Board.

Site Plan Approval

        In December 2006, the Town Engineer issued Village Green Site Plan Approval. (See

copy attached hereto as Exhibit “B”.) Planning Department Supports the Village Green

Application,The Islip Planning Department, the Professional Planners with the experience

and the degrees, unwaveringly supported Village Green’s application from the beginning.

Such support continued throughout the angry and vociferous neighbor opposition.

Village Green’s Amendment Application

Village Green started the application process with the Town to amend the Covenants by holding

meetings with the Planning Department. Village Green’s Proposal complies with and in fact is

under permissible density of nine (9) units per acre. (See Islip Code Section 68-173, Exhibit

“D”.)

        While Bonus Densities are allowed pursuant to the Islip Code, (See, Section 173.1,

Exhibit “D”.) Village Green did not seek any density bonuses. Village Green’s Application

meets all Zoning Code criteria; not a single variance is necessary. The essential features of

the 2006 site plan, have been preserved.

        Looking at the original site plan and the revised site plan reveals vast similarities in all

principal components. (See and Compare, Exhibit “OO” with Exhibits “PP” and “QQ”.)
Landscaping

         Village Green’s Project preserves the exceptional buffers included in Village

Green’s 2006 Approved Application. The Project includes exceptional buffers of existing

natural woods 85 feet to 100 feet deep adjacent neighboring residential properties. The

Total landscaped area is 229,628 sq. ft. or 5.27 ac. Accordingly, 5.27 ac of a 7.29 ac site will

be landscaping; over 72%. The Application provides 3.45 times the landscaping

requirement. The buffer requirement is 25 ft. The site plan provides buffers 85 to 100 ft.

The set-back requirement is 50 ft. The site plan provides a 120 ft. set-back adjacent

neighboring residential properties.

Access

         Similar to the 2006 site plan, sole access would be from Sunrise Highway. In fact, the

Application would use the same driveway, (“a/k/a “Curb-Cut”), already approved by the New

York State Department of Transportation, (“DOT”), which owns Sunrise Highway.

Also in accordance with the original site plan there will be no access to Julbet Dr.

Units

         Village Green’s Project includes beautifully laid out modest sized units with spacious

walk-in & standard closets, tile & hardwood wood flooring, custom designed bathrooms with

custom vanities, modern showers & other amenities as well as large open concept kitchens &

living areas with a variety of solid surface & granite counters, updated full size appliances and a

washer and dryer in each unit.
Nature of Application

       There were two (2) components to Village Green’s Application. The First was to add an

on-site sanitary treatment facility, (“STP”), which would comply with all Suffolk County

Requirements. It is the County and NOT the Town which has the jurisdiction over the STP.

(See Suffolk County Code Article VI.)

       The other component was conversion to apartments. Again, both apartments and

condos are permitted as-of-right in the “CA” Zone.

Sanitary

       The original 2006 approval presumed the project would connect to an existing STP at

Sayville Commons a Multi-Family property about 2/3 of a mile to the west. (see Exhibit “C”.)

Village Green spent years attempting to acquire the easements to do so. However, it was

frustrated in its efforts as landowners would not grant the easements. This included the Town of

Islip denying an easement over a Town road

       Then, the capacity at the receiving site was taken by another project, approved by

the Town, and is no longer available.

       So even condos now require an STP. And the connection is just not available.



Conversion from Condominium

       Village Green is not seeking “CA” zoning. The property is “CA” now. Village Green

did not seek any Bonus Densities. The proposed density was 8.8 units per acre, below 9 units

per acre the Town Code allows. Apartments are permitted as-of-right.

       Village Green preserved the configuration & essential elements of the 2006 site plan.
        The Application complies with all Zoning requirements. Not a single variance is

necessary.

        The front yard set-back requirement is 50 ft. On Sunrise Highway, Village Green

proposed 65 ft. On Lincoln Ave, Village Green proposed 405 ft. to closest unit building. On

Julbet Dr. Village Green proposed 120 ft.; 2.4 times the requirement and the same as original

project. The rear yard set-back requirement is also 50 ft. Village Green proposed a rear yard set-

back of 120 ft. The side yard set-back requirement is also 50 ft. Village Green proposed 50 ft.

adjacent the Sayville Motor Inn. The original approval provided 40 ft. Further, Village Green

proposed 120 ft. of side yard set-back to the properties on Julbet Dr. The same as original

project. Village Green met parking requirements.

        Village Green met the Floor Area Ratio, (“F.A.R.”) and height requirements. The

original Application involved, given the economy and the real estate market at the time, 38

Townhomes. Townhomes are larger two-story duplexes. Village Green’s Application proposed

smaller, single level units.



Planning Board Hearing

        Village Green began its Application Pre-Submission meetings with the Planning After a

number of revisions to address the Planning Department’s concerns Village Green filed its

application in May 2014. In accordance with the Islip Code a preliminary hearing was scheduled

before the Planning Board for November 14, 2014. (Pursuant to the Islip Code, the Planning

Board makes a recommendation to the Town Board. (See Section 68-31(B).



Neighbor Opposition
       It was at the Planning Board hearing that the crowd of complaining neighbors first

appeared. The crowd filled the boardroom. The crowd was highly vocal. As time went neighbors

submitted petitions in opposition. They submitted letters in opposition. Their leader made regular

trips to Town Hall to voice opposition and met, upon information and belief, with some Town

Board Members and/or their assistants. (See Exhibits, “E”, “F” and “GG”.) The Petitions simply

asserted the number of people in opposition and did not address any issue related to the merits of

Village Green’s Application. The neighbor opposition failed to offer any evidence in opposition

to the Village Green Application. At the end of the evening the Planning Board closed the

hearing. Village Green was to follow-up with Town Departments. It did so.



Unpermitted Use of the Premises by Others

       Some neighbors on the north side of Ort Ct., including the leader of the opposition, Ms.

Fatigate, have been trespassing onto and using portions of the Premises which abut their rear

yards. Three (3) neighboring property owners have extended their fences about ten (10) beyond

their property line, (See Survey attached hereto as Exhibits “U” and “NN”), Six (6) of the

adjoining property owners have constructed gates in the fences to gain access to the Premises,

(see, photos in Exhibit “W”). Clearly, there can be no claim of inadvertence when one installs a

gate in the fence. Some adjacent property owners are using the Premises for storage; including

construction materials, such as patio blocks and even a boat, (see, photos in Exhibit “V”). Many

neighbors have dumped garbage and debris on the Premises, (see, photos in Exhibit “X”).

It casts the opposition of the abutting neighbors, including the ring-leader, in stark light; the

comments were made by someone complaining about a one-hundred, (100) foot deep wooded

buffer who is unlawfully using someone else’s land.
The Applicants Studies & Reports

       Complaining neighbors raised unsubstantiated, erroneous and irrelevant issues.

Nevertheless, Village Green addressed all of them. Village Green undertook an investigation of

each and every issue. Site inspections were performed; with Planning Department personnel and

representatives of the State Department of Environmental Conservation, (“State DEC”). Studies

& reports were prepared by licensed traffic engineers and a licensed real estate appraiser. All

issues were addressed. (See Exhibits “K”, “L”, “M”, “CC”, “DD”, “EE” and FF”)



No Wetland

       A neighbor claimed the Premises included freshwater wetland. However, the DEC did

not find any wetlands. The site inspection by the Town and State DEC took close to 2 hours. It

included the Premises and extended across over Ort Ct. over 1,500 feet through the woods down

a drainage corridor. There is no wetland. (see Exhibits “G”.)

       Further, no construction is proposed in the area anyway. Village Green will maintain the

area as natural woods. (See, Site Plan, Exhibit “PP” and “QQ”.)



No Traffic Problem

       Another claim was a potential traffic impact on Jul-Bet Dr. & Ort Ct. However, the

Premises was already Zoned “CA”. Village Green had already prepared a traffic study. Village

Green had its traffic engineers prepare an addition to the traffic report. The addition was

reviewed by the Town’s traffic consultants. (See Exhibits “CC”, “DD”.) After extensive

evaluation, it was confirmed, by the Town that no traffic problems would be generated.
Nevertheless, Village Green agreed to undertake costly modifications to the Jul-Bet Dr./Sunrise

Highway intersection if the Town later thought it necessary and to post a bond to cover the cost.

(See Exhibit “T”.)



No Affect on Property Values

        Some neighbors claimed the proposal would somehow negatively affect property values.

While it was clear such would not be the case; particularly as the Premises was already zoned

“CA” and located on Sunrise Highway and extensive natural wooded buffers were included,

Village Green retained Michael Lynch, a well-respected licensed real estate appraiser, to prepare

a report.

        After a thorough review & evaluation, & after looking at the other apartment complexes

in the area & the surrounding residential housing, Mr. Lynch confirmed the application would

not generate any effect on property values. (See Exhibit “K”.)



No Problems with Local Vacancy Rates
or the Ability to Rent the Units

        Neighbors asserted there were numerous vacancies in the area. Initially, this issue is

unrelated to the merits of Village Green’s Application. (Other apartment complexes may have

vacancies as they are old or run-down or poorly managed or too expensive.)

        The applicant is a professional real estate developer who has constructed and manages

1000s apartments on Long Island, (one complex in the Town of Islip has over 400 units). The

applicant undertook an evaluation of the market before undertaking the project. Based on the

applicant’s longstanding experience, pre-hearing investigation and post-hearing investigation

there will not be any issue in renting the units. In fact, there is strong demand.
       Nevertheless, Village Green employed the Services of Genesis Real Estate Advisors,

(“Genesis”), an experienced real estate brokerage and property management firm based in the

Town of Islip to look into the issue. Genesis concluded there was no vacancy problem as all local

complexes were fully rented and most had waiting lists. (see Exhibit “L”.)



Sayville Motor Inn

       Many who live in the area complain about the Sayville Motor Inn. Village Green does

not own or have any interest in the Sayville Motor Inn. While the Sayville Motor Inn does not

appear to be near as bad as many make it out to be, Village Green does not in any way support or

endorse the Sayville Motor Inn. Some neighbors wanted Village Green to Purchase the Sayville

Motor Inn. While this had no bearing whatsoever on Village Green’s application Village Green

attempted to do so. After attempts by Genesis and Village Green’s attorneys a response was

received indicating that the owners were not interested in selling. (See Exhibits “M”.)



Modifications to the Application

       At the request of the Fire Marshall the parking configuration was adjusted to allow a fire

truck to turn around. Additional landscaping was added and other adjustments were made.

Village Green’s attorney summed up the series of reports, investigations and the site inspection

in three (3) letters to the Town. (See Exhibits “H” through “M”.)



New Covenants

       The Professional Planners in the Planning Department prepared new Amended Covenants

for Village Green’s Application. Village Green signed them. (See copy attached hereto as
Exhibit “T “). Village Green had to sign the new Covenants to get back before the Planning

Board for a decision.



Return to Planning Board &
Planning Department Recommendation for Approval

       On May 4, 2016 Village Green’s Application came back before the Planning Board.

Village Green made its second (2nd) of six (6) appearances. (See Transcript attached as Exhibit

“Y”.) The Planning Department testified firmly in support of Village Green’s Application. One

of the Planning Board Members, (Mr. Brown), recused himself due, upon information and belief,

to personal interest. Despite the Planning Department’s support, despite all of the studies and

reports, despite the site inspection, despite the modifications, despite trying to buy the Sayville

Motor Inn and all of the meetings, some of the Members were clearly opposed to the Village

Green Application. One Planning Board Member indicated he felt Sunrise Highway was not

highly traveled enough for apartments. When the issue was addressed by Village Green’s

attorney the Board Member then shifted to assert it was because the Premises was on the service

road. However, for its entire length through the Town of Islip Sunrise Highway has service

roads. The position that apartments are somehow bad is patently in error in multiple respects. It

avoids the express terms of the “CA” Zone which allows Apartments as-of-right. It also

avoids the need for apartments in Sayville, the Town of Islip and Long Island generally. It

avoids the merits of the Village Green Application. It has nothing to do with the STP.Planning

Board Reaches a Tie-Vote Eventually a motion was made to recommend Approval. It was

Seconded. (See Exhibit “Y”.) Three (3) members voted in favor of recommending approval.

(See Exhibit “Y”.) The other three (3) members voted against it. (See Exhibit “Y”.) Given the
recusal of the seventh member such generated a tie-vote and the result was a non-action. (See

Exhibit “Y”.)



Further Modifications to the Application

       Eventually Village Green was able to get the Town Board to hear the application.

However, to get a hearing Village Green was required to scale-back the Project. (see Revised

Site Plan Attached hereto as Exhibit “QQ”). To get a hearing before the Town Board Village

Green Village Green had to undertake the following:

Reduction in Density

       Village Green’s Application contained 64 units. Such complies with the Islip Code. (see

Islip Code section 68-173, Exhibit “D”.) Village Green had to reduced density to 56 Units; a

reduction of approx. 10% (See Exhibit “N”.)

Half-Senior-Citizen Occupancy

       Village Green also had to restrict half of the units to Senior-Citizens. (See Exhibit “N”.)

Clubhouse, Patio, & Walking Trail

       Village Green had to add a Clubhouse; containing a Gym and a Community Room. (See

Exhibit “N”.) Village Green had to add an exterior patio adjacent the Clubhouse - on 2 sides.

Village Green had to add a walking trail. The walking trail would be in the developed area of the

site. No additional clearing would be required.

Site Management

       Village Green had to add an on-site manager for security purposes, despite there being no

credible security issue anywhere evident and despite the ability to utilize a security system. (See

Exhibit “N”.)
New Draft Covenants

       Village Green also had to sign new Covenants. (See copy attached hereto as Exhibit

“U”). Village Green did so.



Town Board Hearing-Neighbor Opposition Continues

       On June 30 2016 the Town Board held a hearing on Village Green’s now scaled-back

application. There already was an extensive record. Village Green added to it, highlighting the

new revisions and addressing the principal issues. (See, Exhibits “BB”). While Village Green

was conducting studies, preparing reports, trying to purchase the Sayville Motor Inn and

inspecting the Premises with the DEC, the leaders of the neighbor opposition were continuing to

make their position known in Town Hall. The Board room was so packed with opposing

neighbors the Fire Marshall made people wait in the hall. The hall was also full. Upon

information and belief, the source of which being statements made by persons in the Town Board

room to each other, some of those in the crowd were shuttled-in to make sure the room was full.

The opposing neighbors utilized social media to organize their opposition campaign; including

Facebook. Upon information and belief, the “Sayville Mom’s” Facebook page, (which is a

closed group), was utilized by the opposing neighbors to fan the fires of opposition.

Several Representatives of the Long Island Builders Institute which supported the Village Green

Application were never even able to make it into the Boardroom to speak due to the size of the

crowd. (See, Exhibits “BB”). The neighbors were boisterous, often shouting out from the

audience. (See, Exhibit “BB”.) Many resorted to personal attacks on Village Green’s principal

and his wife. (See, Exhibit “BB”.) At the very heart of the opposition was politics. Opposing
neighbors made it clear anyone who voted in favor of the application would not receive their

votes come the election. (See, Exhibit “BB”.) The opposing neighbors submitted a stack of

letters and petitions in opposition to the Village Green Application. (See, Exhibits “E” and “F”).

None of which were provided to Village Green. In the end the Town Board did not act on the

application, which contained the modifications it insisted on. Instead, the Town Board sent

Village Green back to the Planning Board.



Neighbor Opposition Continues

       After the Town Board hearing, the opposing neighbors continued to argue in opposition

to Village Green, outside the official record. Upon information and belief the leader of the

neighbor opposition, Ms. Fatigate, continued to argue against Village Green to the Town, via

telephone and in person. Upon information and belief some of the other opposing neighbors did

likewise. The neighbors also managed to get their message out via local media and through

social media. (see samples of attached hereto as Exhibit “GG”).




Village Green’s Effort’s To Obtain Public Records

       Village Green filed Freedom of Information Requests, (“F.O.I.L.”), to obtain copies of

the letters in opposition, petitions in opposition and other documents submitted by the opposing

neighbors. It took three (3) rounds of F.O.I.L. applications and more than two (2) months to get

access to the documents. (See, Exhibit “JJ”).
       A simple review of the materials reveals the Town’s reluctance in providing them. They

well demonstrate that neighbor position was grounded in politics and weight of numbers and not

on the merits of the Village Green Application. The neighbors simply did not want to see the

Premises developed.



Village Green Returns to the Planning Board: October 3rd, 2016

       On October 3, 2016 Village Green returned to the Planning Board. (Village Green’s

fourth (4th) Board appearance.) However, the appearance was adjourned – not at the request of

Village Green – but at the request of the objecting neighbors.

       This well evidences who was driving the matter at this point. Further, Village Green

became aware that, Planning Board Member Brown, who had recused himself, intended to vote

against the Application anyway. The adjournment and potential vote by Member Brown

compelled Village Green to raise its objections in writing. (See, Exhibit “R”.)



October 10th 2016

       On October 16, 2016 Petitioner returned to the Planning Board. Its fifth (5th) Board

Appearance. The opposing neighbors were now in attendance. Sitting in the room, they were

clearly visible to the Planning Board members, even if they were not permitted to speak. The

Planning Department again recommended approval. Village Green’s attorney then addressed the

Planning Board and answered questions from Planning Board members.

       In the end the Planning Board did not do anything. No further comment or

recommendation was made at all. There was no purpose to the Planning Board proceedings.

Such simply added cost and delay on top of cost and delay.
Village Green Returns to the Town Board

       On November 17th Village Green appeared before the Town Board. It was its sixth (6th)

Board appearance.

       The Planning Department stepped to the podium and again recommended approval.

Village Green’s attorney then answered questions from Town Board members.

       The large group of the opposing neighbors were again in attendance. The Supervisor

made a motion to Approve. However, no other Town Board member said anything. There was

no second. There was no vote.

       After the Town scheduled the matter weeks in advance, in the face of the opposing

neighbors, the Town Board Members did nothing. (See Exhibit “B”.)



Denial of Village Green’s Application

       Undeniably Respondent’-Defendant’s cumulative actions, including but not limited to the

Town Board’s non-decision of November 17th are indicating that the Town has taken a negative

position on the matter. Further municipal proceedings would be futile. In time it became clear

that the Town did not have any intention of conducting any further proceedings. None were or

would be scheduled, (See Exhibits “R and “S”.) In time, Village Green became aware that the

Town, in stark contradiction to its treatment on the Planning Board vote, was now treating the

failed motion to Approve as a Denial. This necessitated Village Green sending further

correspondence, (See Exhibits “R” and “S”.) On December 8, 2016, the Town Board Resolution

was filed with the Town Clerk.

Other Applications Approved
       The Town Board has approved applications filed by other property owners which sought

to amend covenants concerning the conversion from a condominium to apartments. There are no

distinctions between such applications and the Village Green Application which bear on the

relief sought by Village Green. There was not similar neighbor opposition regarding the other

applications. Such approvals establish a precedential effect which requires the Town Board to

Approve the Village Green Application.

                                             ARGUMENT

                                                POINT I

                        THE COVENANTS ARE UNLAWFUL PURSUANT

                        TO RPAPL 1951(1) AND ARE UNENFORCEABLE

               The Covenants are illegal pursuant to Real Property Actions and Proceedings Law

Section 1951 (1) because they fail to demonstrate an actual and substantial benefit to the persons

seeking enforcement.

       The Covenants require that Village Green construct a condominium as opposed to

apartments. The Town cannot require Village Green to develop a condominium. This is

particularly the case when apartments are permitted as-of-right in the “CA” Zone, (See

Islip Code Sec. 68 – 166.1, attached in Exhibit “D”) and any - or even all - condo owners

could rent their units as they please.

               Simply put, the Covenants are unenforceable because there is “no actual and

substantial benefit” to the Town of Islip in having the Covenants enforced. In point of fact, the

Town has not articulated a single, credible actual and substantial benefit. Respondent’s papers

are bereft of even a mention of a potential benefit. In addition, the Covenants are unlawful

because they seek to restrict the form of ownership of the units as condominium ownership.
Further, the Covenants impermissibly restrict Petitioner to sell condominiums and not have

rental units, but do not restrict future owners from renting their condominiums. This is an

unlawful personal restriction. The Covenants violate the fundamental rule that restrictions must

relate to the use of land, not the ownership of it.

                Moreover, the Covenants required that the Village Green connect to a Sanitary

Treatment Plant, (“STP”), located on another property which was possible in 2006 but is not

possible now.

                The Second Department has made its position clear on the enforceability of a

restrictive covenant that “is of no actual and substantial benefit to the persons seeking its

enforcement”. Blue Island Dev., LLC v. Town of Hempstead, 143 A.D.3d 656 (2nd Dept., 2016).

The facts of Blue Island Dev., LLC are analogous to the present case. Further, the Blue Island

Dev., LLC petitioners also sought a judgment declaring certain covenants imposed by the Town

of Hempstead unenforceable pursuant to RPAPL 1951. In Blue Island Dev., LLC, the petitioner

developer sought to develop property with condominium units and filed zoning applications with

the Town of Hempstead Town Board seeking a change of zone to do so. 143 A.D. at 657. As

part of the Town Board’s approval, it imposed covenants and restrictions, one of which required

Blue Island to sell all of the units as condominiums, “but permitted any subsequent owners of the

units to lease the units to the extent otherwise permissible under Town law.” Id.

                After the approval of Blue Island’s application, Blue Island requested a

modification of the covenants pertaining to the sale of the condominiums, similar to the present

case, seeking to be permitted to lease some of the condominium units, rather than sell them. The

Town of Hempstead Town Board denied Blue Island’s request for modification of the covenants

with no explanation. Blue Island Dev. LLC, supra at 657. As a result, Blue Island commenced a
hybrid CPLR Article 78 proceeding/declaratory judgment action. Among other things, Blue

Island sought a declaration that certain covenants restricting Blue Island’s ability to rent the

condominium units were invalid and unenforceable. The Second Department agreed with Blue

Island, citing RPAPL 1951(1):

        A restrictive covenant shall not be enforced if, at the time enforceability of the restriction

is brought into question, it appears that the restriction is of no actual and substantial benefit to the

persons seeking its enforcement of seeking a declaration or determination of its enforceability.

The court held that Blue Island met its burden of demonstrating that the covenant was of “no

actual and substantial benefit to the Town.” Moreover, the Town of Hempstead failed to raise a

triable issue of fact by offering no explanation to rebut Blue Island’s claims. Interestingly, here

also the Town has failed to offer a single explanation to rebut Village Green’s claim that the

covenant is of no actual and substantial benefit to the Town. Nowhere in Respondent’s Answer

or Affirmation in Opposition does Respondent even mention the claim, let alone refute it. There

is no discussion of the claim, no mention of RPAPL 1951(1), no offer of any type of rebuttal or

explanation whatsoever. The reason is simple. There is no explanation. Respondent cannot

argue a defense that just is not there. Respondent has no explanation or rationale to support how

requiring Village Green to sell its units versus rent them, particularly given that future owners

could rent them, provides any actual and substantial benefit to Respondent.

Notably, both apartments and condominiums are permitted within the “CA” Zoning District

wherein the Premises lies. The use is “as-of-right”. This is simply a matter of modifying a

covenant that is clearly unenforceable and should never have been imposed.

The Covenant Requiring Petitioner To Connect To A Sanitary Treatment Plant (“STP”) Is

Impossible And Thus Unenforceable
       The original 2006 approval presumed the project would connect to an existing STP at

Sayville Commons a Multi-Family property about 2/3 of a mile to the west. R. Exhibit “C”.

Village Green spent years attempting to acquire the easements to do so. However, it was

frustrated in its efforts as landowners would not grant the easements. This included the Town of

Islip denying an easement over a Town road. Then, the capacity at the receiving site was taken

by another project, approved by the Town, and is no longer available. As a result, even condos

now require an STP and the connection is just not available. There is no option now.

Connecting to the Sayville Commons STP is impossible. Village Green must install its own STP.

Even the Condos require an STP. Further the Town does not have jurisdiction over the STP as

such rests with Suffolk County.

        Indisputably, the covenant concerning connecting to the Sayville Commons STP cannot

be enforced as the restriction is of no actual and substantial benefit to the persons seeking its

enforcement. In fact, no benefit has been articulated at all; and no benefit is anywhere evident.

Clearly, the covenant requiring that Village Green connect to the Sayville Commons STP must

be deemed unenforceable. Village Green is entitled to a Declaration that the Covenants cannot

be enforced and are of no force or impact. Village Green is entitled to a Declaration that it has a

right to develop the Premises with the 64-apartment proposal.




                                             POINT II
 THE PETITION MUST BE GRANTED BECAUSE THE TOWN BOARD HAS ACTED
  ARBITRARILY AND CAPRICIOUSLY AND WITHOUT ANY SUPPORT IN THE
       RECORD BY NOT GRANTING THE COVENANT MODIFICATION
           It is important to note exactly what Petitioner’s application is seeking because

this is not a typical zoning application. Village Green filed an application to amend the

Covenants. The Covenants are all that is at issue. No re-zoning is necessary. The Property is

Multi-Family “CA” now. Village Green’s Application meets all Zoning Code criteria; not

a single variance is necessary. It is axiomatic that a town board’s decision must be rational,

supported by substantial evidence and neither arbitrary nor capricious. Matter of 7-Eleven, Inc.

v. Town of Babylon, 2017 Misc. LEXIS 2666 (Suffolk Supreme, July 7, 2017); WEOK

Broadcasting Corp. v. Planning Board of Lloyd, 79 N.Y.2d 373 (1992); SCI Funeral Services of

New York v. Planning Board of Town of Babylon, 277 A.D.2d 319 (2nd Dept., 2000); Currier v.

Planning Board of Huntington, 74 A.D.2d 872 (2nd Dept., 1980); Caputi v. Town of Huntington,

2013 N.Y. Misc. LEXIS 997 (Suffolk County); Matter of Deon v. Town of Brookhaven et al., 12

Misc. 3d 1196(A) (Suffolk County, 2006).

               It is also well established by New York law that an administrative board’s

determination must be overturned if it is not rational and based upon “some factual basis as

opposed to resting entirely on subjective considerations” as set forth in the Record. See, Matter

of Jeffrey Slonim v. Town of East Hampton Zoning Board of Appeals, et al., 119 A.D.3d 699

(2nd Dept., 2014); Matter of Colin Realty v. Town of N. Hempstead, 107 A.D.3d 708 (2nd Dept.,

2013); Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768 (2005); See also, Matter of

Gold v. The Zoning Board of Appeals of the Town of Oyster Bay, 28 Misc. 3d 1219(A) (Nassau

County, 2010). Further, precedent clearly demonstrates that an issue is ripe for judicial review if

the “issues tendered are appropriate for judicial resolution, and…[if there is] a hardship to the

parties if judicial relief is denied.” See, Matter of 7-Eleven, Inc., supra at 16. The court noted
that an applicant will be excused from seeking a final decision on an appeal if such endeavor

would be futile or a board has “dug in its heels and made it clear that all such applications will be

denied.” Id. at 16-17 (citing East End Resources, LLC. v. Town of Southold Planning Bd., 135

A.D.3d 899 (2nd Dept., 2016). In Matter of 7-Eleven, Inc., the court relied heavily on the

precedent provided by the Second Department in cases such as Matter of 7-Eleven, Inc. v.

Incorporated Vil. Of Mineola, 127 A.D.3d 1209 (2nd Dept., 2015)(finding that the board’s

determination was arbitrary and capricious where community opposition was clearly the driving

force for the board’s determination and there was no evidence in the record supporting the

community’s claims); Matter of Cascire v. City of White Plains Zoning Bd. Of Appeals, 87

A.D.3d 1135 (2nd Dept., 2011); see also Richter v. Delmond, 33 A.D.3d 1008 (2nd Dept., 2006)

(finding planning board decision irrational, arbitrary and capricious “where it was founded on no

objective factual record basis other than generalized testimony by neighbors raising subjective

concerns on traffic and parking conditions such as general community opposition.”) There are

many facts and circumstances contained within the Matter of 7-Eleven, Inc. v. Town of Babylon,

supra, that are strikingly similar to the present case. There, Petitioners claimed that respondents

capitulated to community opposition and pressure; that 7-Eleven was an “as-of-right” use and it

would be futile to appeal to the zoning board; and that there was no evidence in the record to

support the board’s conclusions, but rather there was evidence to support the grant of the

application. Here, Village Green’s use is indisputably as-of-right. Apartments are a permitted

use within the “CA” Zoning District. That is a fact. The Town Planning Department fully

supported the requested covenant modification. That is a fact. There is no empirical evidence or

evidence of any kind that controverts modifying the covenant requiring Village Green to develop

the Premises with condominiums to permitting Village Green to develop apartments instead.
That is a fact. Village Green cannot hook up to the original STP that the Covenants require; that

is a fact. There was an enormous amount of community opposition and pressure on the Town

Board members to deny Village Green’s application. That is a fact. Any issue raised by anyone

was fully addressed. Multiple studies and reports were prepared. R. Exhibits “K”, “L”, “H”, “I”,

“CC”, and “FF”. The Planning Department, the Professional Planners with the experience

and the degrees, fully supported the Application.

               Village Green has been put through a long and torturous course of studies,

reports, modifications to the proposal, addressing meritless issues raised by neighbors, site

inspections, neighbor out-reach, hearings, meetings and Board appearances. Village Green even

attempted to buy a local motel which community members were complaining about.

The Issue of Ripeness

       In the meritless process, cost and delay were added upon cost and delay. Eventually, after

eighteen (18) months of studies, reports, site inspections and meetings, the Planning Board

reached a tie- vote. Such constituted non-action. Then, Village Green managed to get a Town

Board hearing. However, to obtain the hearing Village Green had to scale-back the project. The

crowd of angry neighbors was even larger by the time of the Town Board hearing. The neighbors

were loud and unruly. At the end of the evening the Town Board, did not vote on Village

Green’s Application, but sent Village Green back to the Planning Board. So back to the Planning

Board Village Green went. Another appearance before the Planning Board resulted in a second

“non-action”. So back to the Town Board Village Green went.

       The result, no board member would second the Supervisor’s motion to Approve. Another

non-vote. The Resolution was filed on December 8, 2016. This game of “hot potato” had come

to an end. It was clearly futile for Village Green to press further for a decision when it was
abundantly clear that Respondents had made their decision. In stark contradiction to the Town’s

position on the Planning Board vote, sometime after the hearing, the Town started treating the

attempted Town Board motion as a Denial of the Village Green Application. Based on the

totality of the Town’s cumulative actions, including but not limited to the two (2) Planning

Board non-decision votes, the Town Board’s non-decision Resolution filed December 8th,

Town’s position that such constitutes a Denial, and all of the other procedures Village Green was

put through, it is clear the Town has taken a negative position due to neighbor opposition. It is

also clear that the Town has denied Village Green’s application and that this issue is ripe for

review. Notably, Petitioner’s counsel sent a letter to the Town Attorney dated December 16,

2016, (R. Exhibit “R”) by which counsel confirmed a discussion between he and the Town

Attorney, Mr. John R. DiCioccio, wherein it was agreed that the Town Board Resolution

stamped by the Town Clerk on December 8, 2016 would serve as a Denial and would start the

clock on the statute of limitations period. The letter stated that “The Town is treating the failed

motion to approve as a Denial of the Village Green Application and no further proceedings

before the Town Board, Planning Board, or any other Town Agency will be held.” Counsel

went on to say, “If you dispute anything contained in this letter, please respond in writing as

soon as possible.” Subsequently, no correspondence from the Town Attorney or the Town was

received to dispute this letter. It is entirely disingenuous for Respondents to now claim that the

case is not ripe for review. Respondents’ actions clearly demonstrated its intent to treat the

failed motion at the Town Board as a denial and that any further efforts by Village Green would

be futile.

        The case law is clear that where a board has “dug in its heels”, as the Town Board and

Planning Board has done here, it is futile for a petitioner to continue to pursue its applications.
See, Matter of 7-Eleven, Inc., supra at 16-17 (citing E. End Resources, LLC v. Town of Southold

Planning Bd., 135 A.D.3d 899 (2nd Dept., 2016). The Second Department has weighed in on this

exact issue and has stated, “The finality rule, however, is not ‘mechanically applied’”,

recognizing that “an exception to the finality requirement exists where the municipal entity uses

‘repetitive and unfair procedures in order to avoid a final decision.’” E. End Resources, LLC,

supra at 901. There are no further steps available to Village Green. It has clearly exhausted its

administrative remedies. The Town Board cannot hide behind a failed resolution to approve and

claim that there is no denial of Petitioner’s application. As the Second Department has held,

repetitive and unfair procedures are not permitted to avoid a final decision. Respondents’ game

of “hot potato”, tossing the Applicant back and forth between Planning Board and Town Board,

with no end in sight, is a prime example of “repetitive and unfair procedures”. There was no

approval. There was no vote. There was a failed resolution to approve. Inaction or nonaction

cannot be allowed to prevent petitioners everywhere from obtaining a final decision and a day in

court if needed. Boards should not be able to hide behind “inaction” or “nonaction” in a

cowardly fashion. Many times, doing nothing is the exact same thing as denying an application

because it allows an applicant to languish in no man’s land, unable to obtain a permit, unable to

develop a project.

       However, here, it is clear through Respondents’ actions, inactions, and lack of response

to counsel’s confirming letter, that the failed resolution to approve that was filed in the Town

Clerk’s Office and stamped on December 8, 2016 was and is a Denial of Petitioner’s application.

The Evidence In the Record Fully Supports the Granting of Petitioner’s Application The

relief is minimal. At issue are only modification to some of the Covenants. The Premises is “CA”

now. Apartments remain an as-of-right use in the “CA” Zoning District. No variances are
required. Village Green addressed each and every issue anyone ever raised and fully and firmly

demonstrated that no such issues existed. The Planning Department, the Town’s professional

Planners, fully supported the Village Green Application at each and every step along the

way. The Village Green Application has been the subject of on-going review by the Town for

years. There has been extensive discussion; numerous meetings and a pile of studies, plans and

reports generated by Village Green; all of which only support the Approval of the Application.

R. ______ Village Green signed multiple versions of proposed new covenants. Village Green

agreed to post a bond for roadway improvements that even the Town’s traffic safety personal

feel will probably never be necessary. Village Green even made an effort to buy the Sayville

Motor Inn. R. ___Village Green revised the application multiple times, including reducing

density, adding amenities and making half of the units restricted to senior citizens. There is no

evidence at all which weighs against the Village Green Application. There is just a stack of

opposing letters, a pile of opposing petitions and a litany of neighbor statements emphasizing

politics and weight of numbers. (see Exhibits “E” and “F”). Such does not address the merits of

the Village Green Application. Such offers nothing in opposition to the Village Green

Application. All evidence supports the grant of the Village Green Application. No negative

effect would be felt by any person anywhere. Village Green only signed the Amended

Covenants as it was required to do so as a condition to obtain an appearance before the Planning

Board and a hearing before the Town Board. The Amended Covenants are illegitimate and do

not have any discernible nexus to any potential negative effect which could be the result of the

relief sought. In fact, no negative effect has ever been advanced by the Town. The Amended

Covenants cannot be enforced anyway for the reasons stated above. The Town Board’s decision

remains arbitrary and capricious. The Town Board’s decision is against the firm weight of the
more than substantial evidence. The Town Board should have and must be directed to Approve

the Village Green Application, without any Covenants, Conditions or modifications. Village

Green is entitled to entry of Judgment against the Town Board directing it to Approve Village

Green’s Application to convert to 64 apartments and utilize an on-site STP without covenants,

conditions or modifications.

                                                POINT III

            RESPONDENTS-DEFENDANTS SHOULD BE DIRECTED TO PROCESS

                    AND GRANT PETITIONER’S SITE PLAN APPLICATION

       Respondents-Defendants have indicated they refuse to process a site plan

application or issue a building permit based on Town Board’s determination not to amend

the Covenants. However, Respondents-Defendants are obligated to process the site plan

application. Such is administrative.