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A. Thomas Levin Quoted in the LI Herald, "Hempstead Avenue subdivision plan moves on to village Planning Board"

Apr 27, 2018Local Government and Land Use

Media Source: LI Herald

Hempstead Avenue resident Marjorie Stein approached the lectern and faced Rockville Centre’s Board of Appeals, beginning to discuss the negative traffic, environmental and safety impacts that she claimed a proposed subdivision on her street would cause.

Various plans by property owners Jim and Brett O’Reilly to subdivide 220 Hempstead Ave. — formerly the St. Mark’s United Methodist Church’s parsonage — have been opposed by certain residents for about two years.

The most recent plan to subdivide the 1.75-acre plot of land into six single-family homes calls for a new street, to be called Killarney Lane, to be built perpendicular to Hempstead Avenue to allow access to the homes planned for the back of the property.

Robert Schenone, the board’s chairman, quickly interrupted Stein. “We’re here to discuss a legal issue about the building department’s interpretation of a word,” he said. “I understand what you’re saying, but tonight is not the night.”

That word was “public,” as in public road. The village passed a local law in 2016 that amended a section of the village code to clarify “street” to mean a public street. If Killarney Lane was deemed a private street, four homes in the proposed subdivision would not meet zoning requirements, as homes must have 80 feet of frontage along a public road.

The village’s Building Department rejected the O’Reillys’ proposal last month, determining that until Killarney Lane is accepted by the Board of Trustees for dedication, it is a private road. But Chris Browne, who represents the O’Reillys, has said repeatedly that the road would be available to the public and offered to the village for dedication.

The night for Stein and other residents to weigh in on the subdivision itself will come, as the Board of Appeals last week unanimously voted to allow the plan to move forward to the village’s Planning Board. The approval that the street is public is under the condition that the Planning Board will approve the subdivision and the village will accept the street as its own.

“We’re pleased with the decision; we’ve always wanted the opportunity to move the application to the planning board,” Browne told the Herald after the meeting. “I don’t accept the premise that the road has to be dedicated to be public.”

John A. Matthews, counsel to the Board of Appeals, said at the meeting that he “vehemently” disagreed with the Building Department’s decision to send the application to the Board of Appeals, adding that without a definition of a public road in the village code, Browne was correct in saying that a road open to the public is a public road.

“This is going to get cleaned up and fixed after this whole case is decided so that this doesn’t happen again,” Matthews said. “It shouldn’t happen.”

But Village Attorney A. Thomas Levin, who was not present at the meeting, told the Herald that it is a private road until it is owned and maintained by the village government, meaning the trustees would have to accept the street.

“Somebody’s intent that I intend this to be a public road in the future doesn’t make it a public road today,” Levin said.

He added that the fact that there is no definition of a public road in the village code doesn’t matter. “We don’t have to have one,” Levin said. “There are definitions in case law and state statutes that tell us that.”

Levin wrote to the Herald in an email earlier this month that the 2016 law was passed after several board members expressed that private roads — of which there are currently none in the village — “are not desirable because they cause problems of various kinds, including maintenance, utility service, garbage collection, snow removal and traffic regulation.”

Browne said the O’Reillys have been “enormously frustrated” by the “many hurdles” in trying to get this project approved.

“Are we fighting over something? I don’t think so,” Browne said. “We want to create a public road. They say they want and require a public road.

“Why did it take two years to get to the planning board?” he added. “That’s been upsetting to them.”

Residents have already voiced opposition to the subdivision, citing the former parsonage’s historical value, as well as overcrowding and the destruction of open space. A hearing before the Planning Board is expected in the next month or two.

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