A Nassau County State Supreme Court judge ordered the city’s Zoning Board of Appeals on Monday to hold a public hearing that could potentially derail a developer’s plan to build luxury apartment towers on the Superblock.
The ruling came after a group of Long Beach residents, represented by former U.S. Sen. Alfonse D’Amato, filed a lawsuit against the zoning board last year in an attempt to overturn a variance and permit that were issued to the developer, iStar FM Loans.
The lawsuit sought to revoke a building permit that was issued to Shore Road Long Beach Superblock LLC, a subsidiary of iStar, in May 2015, which the suit claimed was invalid because the variance, issued in 2014, had expired. It also sought to force the zoning board to hold a public hearing.
In his ruling, Judge Stephen Bucaria denied both the city’s and Shore Road’s motions to dismiss the case, and said that the board had 90 days to hold a public hearing to determine whether the permit and variance were still valid, a decision that could impact the future of the project. But Bucaria also denied the plaintiff’s request to declare the building permit and variance void until the board held its hearing.
“It is for the Zoning Board of Appeals, rather than this court, to determine in the first instance whether the granting of the variances were complied with, and whether the time period for obtaining all necessary permits should be extended,” Bucaria wrote.
Residents James Kirklin, Michael and Rianna Goldshall, and Boguslaw Pawlowicz, Republican former City Councilwoman Mona Goodman and the Republican slate of candidates who ran for City Council last year — Leah Tozer, Christopher Jones and William Haas — filed the lawsuit on Aug. 3 against the city’s Zoning Board of Appeals, its building commissioner, Scott Kemins, and Shore Road.
“We’re gratified with the ruling,” said Christian Browne, an attorney for the plaintiffs. “We had requested [the hearing] and we’re pleased. Our contention is that the language of the zoning board resolution is that you have to obtain all of the necessary building permits within a certain time frame, and if you don’t, then the approval for the variance expires automatically.”
In February 2014, the zoning board voted 5-1 to grant iStar a height and density variance to develop a mixed residential and commercial development on the six-acre parcel between Riverside and Long Beach boulevards, East Broadway and the boardwalk, saying that it would revitalize property that has remained vacant for 30 years.
The proposed project includes two 15-story buildings — roughly 50 feet taller than the city’s height limit of 110 feet — with 522 one- and two-bedroom luxury rental apartments and 11,000 square feet of retail space for a handful of shops along the boardwalk. IStar told zoning board trustees that it had the financial wherewithal to move forward with the project, which it said would generate $4.8 million in property taxes.
The developer sought approval for the variance after the City Council voted to settle a city lawsuit against the developer for $5.25 million in 2014, the terms of which included the city’s support for a payment in lieu of taxes, or PILOT, program for an unspecified term.
But after the board granted the variance, the developer faced a swift backlash from residents after it began pursuing tax breaks from the Nassau County Industrial Development Agency, claiming it could not move forward with the project without a PILOT.
The IDA rejected two requests by iStar for tax abatements, including a 20-year, $109 million proposal in 2016, amid an outcry from D’Amato and residents who maintained that the city would lose out on the full tax benefits of the development.
According to the suit, iStar was required to obtain the necessary permits within nine months of the zoning board’s approval and commence construction within a year, or the variance would be revoked. In November 2014, the zoning board granted iStar an extension until the following May.
The developer filed an application that spring for a permit to begin work on the foundation only, city officials said, and on May 28, 2015, it received approval from Kemins to start that work. According to the complaint, the Building Department granted iStar at least two extensions for the foundation permit, though the lawsuit claims that no construction plans were submitted for the towers.
Last June, Kirklin, who lives on Riverside Boulevard, near the property, appealed the Building Department’s most recent year-long extension, issued last year — to run through May 2018 — arguing that iStar was no longer entitled to the permit and would have to go before the zoning board to obtain a new variance.
“The variances granted on Feb. 28, 2014, expressly provide that they are null and void if all necessary permits are not obtained within nine months, and construction did not begin within one year,” Bucaria said in his decision. “In view of the … over three year delay in obtaining permits and performing substantial construction, the board was required to treat Shore Road’s most recent request for an extension as a new application.”
To date, city officials said, iStar had yet to file for additional building permits. Its executive vice president, Karl Frey, did not respond to requests for comment.
According to court documents, Frey argued that Shore Road began construction in August 2015 by excavating the site, pouring a concrete slab and performing other work to build the foundation. The developer argued that under the settlement agreement with the city, it had a “vested right” in exchange for the $5 million it paid to the city, and that the permit for the foundation was all that was needed.
“If further construction is blocked, Shore Road stands to lose an investment of nearly $80 million overall,” Frey told the court, citing the economic benefits of the project.
Bucaria denied iStar’s motions to dismiss. “While Shore Road alleges that it spent $8.3 million after the building permit was originally issued in November 2014,” the judge wrote, “it did not start construction promptly after the permit was issued and, to date, has only performed preliminary [work] to laying the foundation.”