On Wednesday, Feb. 25, attorneys for B.I.T.I. delivered lawsuit papers to the Roslyn Village Hall.
The lawsuit, filed by the Garden City law firm of Rosenberg, Calica and Birney LLP, cites the village with an "unprecedented abuse of power and an unlawful scheme to extort more than $6 million dollars from the developer in connection with its application for site plan approval and a special use permit."
This represents the second legal action taken by the developer. On Nov. 17, 2008, B.I.T.I. filed an Article 78 lawsuit against the Village of Roslyn.
For several years, the Farmingdale-based B.I.T.I and the village have been in negotiations over a development plan on 11.7 acres of land off Skillman Avenue, one that would construct 80 residential units, plus an array of amenities designed, in part, to alleviate the parking situation in the village.
The lawsuit further alleges that village officials "improperly used B.I.T.I.'s application as an opportunity to, inter alia, extort exorbitant sums from B.I.T.I. - including a demand that BITI pay at least $6 million dollars to the Village - in exchange for approvals and to force B.I.T.I. to construct numerous public amenities at its sole expense."
In addition, the legal action claims that village officials "engaged in a conspiracy to keep increasing their demand for financial compensation, extorting dollars for projects throughout the village, violating, among other things, the Racketeer Influenced and Corrupt Organizations Act (RICO)."
"Village officials viewed this application as their municipal piggy bank, warning the developer that its refusal to pay for new and added layers of village infrastructure would result in ruinous delays," said attorney Ron Rosenberg.
In addition to the reduced number of units, B.I.T.I. also agreed to construct numerous amenities in the village. They included a village green, a public plaza, a visitor parking lot, a waterfront promenade, a boat launch, wetlands restoration, on-street parking, such streetscape elements as trees, lighting, furniture, and "public art."
All of this was cited by B.I.T.I. attorneys as the company's efforts at good faith during the years of meetings and negotiations.
"The Village of Roslyn has been sued by BITI II, LLC, a developer who sought to construct a townhouse community on the east side of Roslyn Creek just south of the Viaduct," said village attorney John Spellman in a written statement.
"The proposed project did not comply with the Village's zoning regulations and as a result the developer elected to seek relief from those zoning regulations by means of the Village's Development Incentive Bonus Law. According to that law, a developer may offer the village public amenities or cash in lieu thereof in exchange for a dispensation from strict compliance with the governing zoning regulations. That's exactly what BITI did. It offered public amenities in exchange for approvals. And that's totally legal.
"The fact of the matter is that the village's board of trustees accepted the written offer of BITI and actually approved a special permit under the Development Incentive Bonus Law allowing BITI to construct its project. The Board of Trustees also approved the site plan for the project.
"But BITI, after offering to provide public amenities, now seeks to have those amenities stripped from its approvals and taken away from the residents of the village.
"One of the items which BITI offered to finance was the reconstruction and expansion of the Roslyn sewer pump station at a cost of approximately four million ($4,000,000.00) dollars. This project was necessitated by the fact that the Nassau County Department of Public Works determined that no further sewer hook-ups would be allowed in Roslyn beyond those already approved and in the pipeline unless and until the pump station was reconstructed and expanded. It thus was and is most certainly in BITI's best interests to see the pump station project through. Inexplicably, BITI is now attempting to renege on its offer to finance that project.
"In order for BITI to receive building permits from the village, it is required that it file a subdivision map with the Nassau County Clerk. The final subdivision map has not as yet even been submitted to the village's Planning Board which must sign it before it can be filed. Additionally, the Nassau County Health Department must sign the map prior to its filing. But the Health Department will not sign until a Letter of Sewer Availability is issued by the Nassau County Department of Public Works. But that won't happen. The Department of Public Works has indicated that it will only consider issuing interim hook-up permits relative to the BITI project if the funding for the design, review and construction of the pump station is in place and if the Village is actually committed by resolution to award a contract for the work.
"The Village is and has been committed and willing to engage engineers to design the pump station, to have the designs approved by all governing authorities, to put the project out to bid, to award the bid to the lowest responsible bidder and to actually have the pump station constructed, but only on condition that BITI would put up the funding. The Village does not believe that the taxpayers of Roslyn should have to float bonds for millions of dollars in order to facilitate private development.
"So, the lawsuit is thus an act of self-destruction by BITI. It can't get building permits until its subdivision map is filed. The map can't be filed unless a Letter of Sewer Availability is issued by the County. That letter will not be issued until the pump station reconstruction and expansion is undertaken. That project requires money, which BITI has offered to pay. But BITI won't pay it until it gets its permits. If BITI's thinking sounds illogical, it's because it is.
"The Village's Board of Trustees carefully analyzed and nurtured the BITI project through the many review processes which affect such a venture. The Board went on record in support of the project even when such was not popular in the community. The Village used its good offices to lobby Nassau County to even consider granting temporary, interim sewer hook-up permits. It acted in good faith in accepting the offers made by BITI for the zoning relief it needed. To say that these actions of the board of trustees constitute extortion and racketeering is irresponsible and flies in the face of reality.
"The Board of Trustees will vigorously defend this lawsuit," Spellman concluded.
In addition, a Roslyn resident has inquired as to whether or not it is true that the village attorney, John Spellman; the village engineer, Kevin McAndrew, and the village planner, John Shapiro worked simultaneously for the Village of Roslyn and BITI II, LLC, the developer of the former Stop and Shop property.
The answer, according to Spellman, is negative. "BITI II, LLC had its own engineers, its own attorneys and its own planners," he said.
"The Village did, however, receive reimbursement from BITI II, LLC for the costs associated with the Village's consultants pursuant to provisions of the Roslyn Municipal Code," Spellman added. "The Village's consultants billed the Village, the Village paid them and the Village then was reimbursed by the developer."
"There was no relationship whatsoever between the Village's consultants and BITI, II, LLC," Spellman further concluded.