In Surprise, Developer's Apartment Plan Denied

The four residential structures at 14-18 Creek Road, where a developer wants to build 14 apartments across three buildings. Long Islander News photo/Connor Beach

By Connor Beach
cbeach@longislandergroup.com

A developer is considering whether or not to sue the town after his proposal to build 14 apartments along Creek Road stalled before the zoning board despite a lack of “credible evidence” to support the denial, according to the board’s written decision.

The planned development, dubbed Creekside by the Harbor Phase II – a continuation of an existing housing development 300 feet east on the road – calls for three separate buildings across four parcels that are currently occupied by residential structures.

The zoning board’s meeting last Thursday featured over an hour of testimony on the proposal from attorneys, engineers and members of the public.

At the end of the hearing, the zoning board did not muster four approval votes for parking lot and building setback variances needed by applicant Creekside by the Harbor Phase II, LLC.

When a quorum of the board is present, a majority vote is required to approve an appeal, according to town code, which was amended in 2002 with that requirement that was instated as the result of a lawsuit against the ZBA.

ZBA Chairman Christopher Modelewski, Vice-Chairman Peter Tonna and member Ed Perez voted in favor, while Cheryl Grossman and Richard McGrath voted against the proposal. John Posillico and Tami Stark were both present, but abstained from the vote.

Both Grossman and McGrath are newcomers to the board; Grossman was appointed in December by the town board under former Supervisor Frank Petrone, and McGrath was appointed Feb. 6 by the board under Supervisor Chad Lupinacci.

The principals of Creekside II are now considering a suit against the board, according to their Uniondale-based attorney William Bonesso.

“We thought we had a very good case, particularly considering that Creekside Phase I, which was approved and built, had similar type setback variances,” Bonesso said. “We were surprised by the ultimate non-decision of the board.”

Bonesso added the group is now weighing whether to challenge the board’s decision in court via Article 78 of the New York Civil Practices Law, or re-file and re-present the proposal to the town.

“We’re not prohibited from going back to the board and asking them to consider it again and asking them all to vote on it,” Bonesso said.

John Bennett, special counsel to the town’s ZBA, said applicants are generally required to wait one year before re-filing a proposal, but that policy could be subverted if changes to it are made.

ZBA Chairman Chris Modelewski, reached by telephone Tuesday, declined to comment on the case, citing the potential Article 78 proceeding.

The board’s written decision states, “The only credible evidence in the record supported a grant of the requested variances.“Notwithstanding that fact, the application failed to attain a majority vote and is therefore denied as a matter of law.”