On Jan. 9, Judge Stephen Bucaria presiding in the Nassau County Supreme Court ruled in favor of the suit brought by Walbaum, Inc. against the Village of Great Neck. After years of discussions and public hearings, the village, in March of 2004, passed a local law to upgrade the zoning on East Shore Road from an industrial and business district to a Waterfront Development District on the east side and a Mixed Use District on the west side of East Shore Road. Walbaum, Inc., under the parent company A & P, owns 2.4 acres of land adjacent to Manhasset Bay in the rezoned area and almost four months later filed a lawsuit against the village for the change in zoning on the east side of East Shore.
In a 15-page ruling, Judge Bucaria, concluded that the village had not strictly adhered to the requirements of New York State's environmental impact assessment law, State Environmental Quality Review Act (SEQRA).
The judge ruled that the village "engaged in improper segmentation" of its environmental review by rezoning the property before the status of the two sewage treatment plants on East Shore Road was determined. In his ruling, Judge Bucaria quotes former village mayor, Stephen Falk, who had publicly stated that the diversion was a "linchpin" in the development of East Shore Road.
Attorney for the plaintiff, John Ward of Sahn, Ward & Baker, contended that the village "failed to consider the environmental impacts of a related project that is part of the village's long-term plan for the redevelopment of the rezoned area, mainly the proposed closure of two of the village's sewage treatment plants in the rezoned area ..."
The village attorney Steven Limmer argued that "the sewer diversion project was part of a completely separate joint initiative that is not under the direct jurisdiction of the village." The Water Pollution Control District, as a special district under the Town of North Hempstead, is independent from the village. As such, the village attorney countered that "as a matter of law and policy, segmentation does not exist where future actions are speculative."
Village officials have stated on numerous occasions that the sewer diversion or upgrades to the existing plants is a separate matter and is not necessary for the rezoning.
The judge writes that the village's conceptual site plan "... explicitly acknowledged that the location of the existing sewage treatment plants is redeveloped with residential units and retail space. The proposed redevelopment therefore involved the closure of the existing sewage treatment plants and the diversion of the village's sewage to a new location for treatment."
However, in pursuing the diversion story, the Record learned that even if sewage were diverted to Cedar Creek, the Great Neck plants would still need space for "settling tanks" where the grit is removed before the sewage can be pumped; there would also be a need for large storage tanks that would contain the sewage during peak flow times and during emergencies. The miles of pipes would still need to be maintained and there would be a need for storage space for the heavy equipment used for those purposes. In other words, even with diversion, those plants would not totally disappear.
Judge Bucaria writes that the village failed to take a "hard look" prior to adopting the rezoning in regard to the diversion saying that they did not fully investigate the environmental impact of "having to excavate streets to lay approximately 6.5 miles of underground piping to connect the village's sewer lines to Nassau County lines." This impact, along with others, is supposed to be studied in the $3 million grant from the Department of Environmental Conservation on diversion.
The judge further wrote that the village did not take a "hard look" at the effect of the proposed development on the water quality of Long Island Sound.
In regard to the contamination of the various parcels on East Shore Road, the judge found that the village, while attempting to receive information about the "hot spots" from the DEC, took no further action "to identify and clean up the contamination in the rezoned area. It simply rezoned the properties without considering whether the residential standards had been met."
In the public hearings, there were numerous comments made about the level of pollution on various sites on East Shore Road and the fact that there was no specific information about the extent of the contamination. Village officials specifically reached out in an attempt to interest a real estate company that had extensive experience in developing brownfields to residential standards, but those attempts have not materialized to date.
Village officials plan to appeal the decision. In the interim, the board of trustees is proposing a moratorium "to maintain the status quo" until the village mayor and trustees decide if they want to wait for another determination and/or reopen the SEQRA process.
Mr. Limmer emphasized that the village officials firmly believe that the issue of diversion and the rezoning, each important and complex, should be addressed as separate issues. Mr. Limmer said, "One does not depend on the other."