B.I.T.I., the Jericho-based firm that has long hoped to build residential housing units in downtown Roslyn, filed an Article 78 lawsuit against Village of Roslyn board of trustee members.
In a motion filed on Nov. 17, 2008, attorneys for B.I.T.I. claimed that special permit and site plan approval decisions made by the Village of Roslyn board of trustees are reviewable by an Article 78 proceeding.
In filing the 18-page brief, B.I.T.I. attorneys gave a short history of their various applications and revisions when attempting to gain approval for housing construction.
In June 2003, B.I.T.I. first applied to the BOT with a plan to construct residential housing, along with the maintenance of an existing restaurant. By 2006, B.I.T.I. had submitted a site plan for a development with 80 residential units, while reducing the size of the restaurant.
From there, more modifications followed. In 2007, the company requested development incentive bonuses modifying floor area ratios, and various front yard setbacks. In return, B.I.T.I. offered to construct a number of public amenities, including a visitor parking lot, a village green, and a waterfront promenade. B.I.T.I. also agreed to assume the cost of maintaining the development's private roads, drainage system, and to provide a refuse carting. In all, B.I.T.I. agreed to eventually pay the village "in excess of" $8,000,000 for various projects, including reconstruction and enlargement of the village's pump station, plus roadway and parking improvements. In 2008, B.I.T.I. increased the payment for the pump station, from $3,500,000 to $4,000,000.
On July 23, 2008, B.I.T.I. submitted another site plan to the BOT. This version now contained 78 residential units, one commercial building and the restaurant.
The revised site plan was forwarded to Cameron Engineering & Associates, the village's engineering consultant, which made their own recommendations.
On Sept. 2, 2008, B.I.T.I. responded to the Cameron memorandum with its own objections, namely to conditions that it obtain an easement over private property to construct a new access for a third party; that it reconstruct and restore Skillman Street; and that it correct an underground water seepage problem on an adjacent property.
Later, on Sept. 16, 2008, the BOT granted the special use permit application for development incentive bonuses. It also granted site plan approval for the final Site Plan.
Both the special use permit and the site plan approvals came with certain conditions. Again, B.I.T.I. leveled its objections. It claimed that several conditions laid out by the BOT were "arbitrary, capricious, [and] unsupported by the record and contrary to law." They include payments for pump station reconstruction and enlargement and other "unspecified improvements" requiring B.I.T.I. to repave the entire length of Skillman Street; Condition 4 in the site plan approval decision that B.I.T.I. must demonstrate 'financial responsibility to complete the project;' Condition 5 in the site plan approval that B.I.T.I. 'use its best efforts to secure an easement from the owner or owners of Lot 66 as set forth on the Plan;" and finally, that Condition 9 in the site plan approval that "each and every representation that B.I.T.I. made on the record is deemed to be a condition of the site plan approval decision" is also "arbitrary, capricious, and unsupported" by the record and contrary to law.
John Spellman, attorney for the Village of Roslyn, issued the village's response to the lawsuit, one that focused mostly around payments by B.I.T.I. to the village's sewer pump station.
"The case is an Article 78 proceeding according to which B.I.T.I. is seeking court review of the special permit granted by the Board of Trustees for 78 residential units on the former Stop and Shop 11-acre site," Spellman said.
"The special permit granted B.I.T.I. the right to construct the project even though components of it did not conform to the Village's Municipal Code. The mechanism for the approval was the Village's development incentive bonus law, which allows for variations of the Code where the developer provides public amenities to the residents of the Village.
"One of the key issues identified in the environmental review process for the project was the fact that the sewer pump station did not have the capacity to serve the proposed development. Additionally, based upon the age of the pump station, refurbishment was also required. Discussions with the developer led to an offer by B.I.T.I. to provide to the Village the sum of $4,000,000 'for the reconstruction and enlargement of the Village's sewer pump station.' This offer was accepted by the Village, but the current controversy centers around "when" the funds will be paid.
"The decision of the Board of Trustees required that the $4,000,000 be paid by May 15, 2009. B.I.T.I. rejects that requirement as unreasonable.
"B.I.T.I. contends that the $4,000,000 should not be due and payable 'until B.I.T.I. has obtained all of the approvals required for the Project.' But such an arrangement is legally and logistically impossible. Here's why:
• One of the approvals necessary for the issuance of building permits by Roslyn is the filing of a subdivision map in the County Clerk's Office.
• Before a subdivision can be filed, however, several signatures are mandatory.
• One of the mandatory signatures is that of the Department of Health indicating that there is sufficient sewer capacity for the homes to be built.
• Such capacity does not exist.
• The Village is willing to have engineers design the reconstruction and enlargement of the pump station (thus increasing capacity), to have the plans reviewed by the appropriate jurisdictional agencies, to have public bid packages prepared, to put the project out to bid, to review the bids and to award the contract.
• However, the Village is unable to award a contract unless it identifies the funding for it (by either having the cash on hand or by passing a resolution to issue bonds to pay for it).
• The Village is unwilling to bond this $4,000,000 project.
• Thus, the Village must be in possession of the cash for the project.
The Department of Health has indicated, at the Village's urging, that it may be willing to grant B.I.T.I. temporary sewer hookup permits for the homes to be constructed provided that the Village shall have already contacted to reconstruct and enlarge the pump station.
"But without the deposit of the $4,000,000 by B.I.T.I. up front, the Village cannot enter into such a contract," Spellman concluded.
Mayor John Durkin also commented on the lawsuit.
"Asking for a $4,000,000 deposit to advance a project which will approach $1,000,000 is not only reasonable, it is absolutely necessary," he said. "The taxpayers of Roslyn should not be required to put up millions of dollars in order to help a developer make money. The expansion of the pump station is a requirement of the development. The developer should pay for it and, since it must be built up front, the developer should pay up front."
"The Roslyn Municipal Code contains a provision which gives the Board of Trustees the authority to require documentary demonstration of the financial responsibility of the applicant to complete the project," the village attorney continued. "B.I.T.I. objects to this requirement. But Mayor Durkin responded that, 'the last thing the residents and taxpayers of Roslyn need or want is a half-completed project sitting around in the center of their Village for a decade or so. It is absolutely reasonable for the Board to make sure that there is enough money to finish the project, especially in light of the reluctance of the applicant to deposit the funds necessary for the improvement of the pump station.'"