By JOSEPH KELLARD
³We believe their decision was in error,² Cohn said of the board¹s unanimous thumbs down to the Valley Stream-based company¹s application for a height variance at a facility for construction and demolition materials, once owned by Gator Recycling Corporation, on Brown Court.
The board instead adopted the findings of the Oceanside Cove Homeowners Association, which opposed Serota on the grounds that there are already too many recycling businesses in Oceanside¹s industrial zone, and that another would only add to existing problems, from airborne dust to heavy traffic in town.
³We think, given the history of this parcel and the impact it would have on the environment and traffic in the area, this was the correct decision for the people of Oceanside,² said Anthony Iovino, the attorney representing Oceanside Cove, a condominium complex on Daly Boulevard, near the town¹s industrial zone. ³And we¹re confident that the town will be successful on any appeal by Serota.²
At a ZBA hearing in February, Cohn argued that Serota was before the board only to obtain a permit to raise the roof of the existing building 16 feet to accommodate indoor recycling operations, a variance the town¹s building department had denied the company. The New York State Department of Environmental Conservation had already approved the new facility, determining that it met the standard that materials recycled there would not be ³noxious and offensive² to its neighbors.
Between the February hearing and a second one in May, however, the Hempstead town board passed a new code that altered the process of the case. Whereas recyclers were once essentially subject only to the noxious-and-offensive standard, the new code, adopted in April, required that recyclers within 500 feet of a residential area obtain a special use permit, which requires more specific standards on various issues ‹ from dust, traffic and light to noise, vibration and drainage ‹ to operate a facility.
³This new ordinance has no effect on our application,² Cohn argued before the board at the May 24 hearing. ³We don¹t have to present any new evidence about use. We don¹t need the board¹s approval. If we were seeking a whole new facility, we would go under the new ordinance.²
But the board turned down Serota¹s application, in part because the company failed to prove an entitlement to a special permit. ³Based upon the building code requirements for a special use permit,² read the board¹s findings, released on Dec. 6, ³the applicant has failed to meet its burden and the request for a special use permit is denied.²
Iovino stressed in his arguments that the reapplication to open a new facility should obligate Serota to abide by the new code¹s standards. ³This is a whole new case,² Iovino told the board in May.
In 2003, Gator was shut down after being slapped with fines for code violations, having stockpiled 10 times the amount of permitted waste. Nathan Serota, who became a 50 percent owner of Gator in 1998 and full owner in 2001, had to pay to clean up the property. But besides this cleanup and some maintenance, and with plans to sell the site to another recycler, Serota has done no construction at the property. Based on this and other factors, the board deemed it irrelevant that Serota originally filed its application prior to the adoption of the new code.
³An applicant is bound by new zoning regulations unless the owner has undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment,² the board¹s findings continued.
³We believe that this comment is in error,² Cohn said when explaining Serota¹s grounds for an appeal, ³in that this would apply to an application to create a new facility and that this is an existing facility with permits from both the DEC and the town, which remain in effect. All that we sought from the board was permission to make the building higher to accommodate the loading and unloading of vehicles inside the building. So we don¹t need the board¹s permission for this facility.²
During the hearing, Cohn pointed to a 2003 case involving Rieco Properties in Oceanside as a precedent for Serota¹s case. Based on the noxious-and-offensive standard, the town zoning board denied Rieco¹s application to open a waste facility nearby on Hampton Road, but the decision was overturned. The Court of Appeals determined that that particular standard is ³arbitrary and capricious,² said Cohn, arguing that the appellate court affirmed this when it ruled in Rieco¹s favor.
Gerald Wright, the zoning board chairman, noted that while he is bound by the appellate court¹s decision, ³I don¹t believe the Rieco case pertains to this one.² He said he would accept both sides¹ arguments as different strategies in the hearing.
So while Cohn, who had four expert witnesses testify at the hearing, objected to certain questions from the opposition based on his position that those queries were unrelated to Serota¹s proposal for a height variance, Iovino, who used a traffic expert and had some residents speak against the application, nonetheless proceeded to question Serota¹s experts on issues ranging from dust and odor to noise and traffic.
Serota¹s witnesses explained that the indoor facility would feature a continuous dust suppression system that would carry airborne particles back down on the recyclable materials or the floor, and Iovino countered that during the summer the non-climate-controlled facility would likely keep its six roll-up doors open, thus allowing dust to escape.
³I do applaud the board¹s decision,² said resident Stu Gubenko, who lives near the industrial zone, ³as a step towards helping this community become a cleaner and better environment.²
Comments about this story? JKellard@liherald.com or (516) 569-4000 ext. 287.
