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Smithtown Town to take dozens of industrial businesses to court

Kings Park companies are violating town code

A view of the parcel, located on Lawrence Road at Old Northport Road, as provided by Google maps.

May 08, 2013 | 12:48 PM
With the Smithtown Town Board's blessing, Town Attorney John Zollo will soon ask the New York Supreme Court for a permanent injunction on the activities of the 35 entities located on the more than 40 acres at 1 Lawrence Road in Kings Park, seeking to ease resident concerns there.

Residents have for some time dealt with the odors, noise and unsightly heavy industrial activity on land zoned for residential use on Lawrence Road and Old Northport Road, known colloquially as the Kings Park industrial area.

This town action is the latest litigation against industrial companies that operate in violation of town code, running solid waste facilities, mining for sand, composting and performing numerous other "obnoxious" uses, as town officials have deemed them.

Zollo plans to seek the injunction within two weeks.

The town has already gotten a district court restraining order on activity for Town, County and State Recycling, LLC, one of the 35 entities at that address, but that restraining order is only good for the period of time that a case against the company continues to be heard in district court, Zollo said, so he is including the company in the supreme court request for a permanent injunction.

Town officials say that company has multiple violations, including operating a solid waste facility, mulching, composting and commercial vehicle storage.

While there are many entities on the land, divvied up into small parcels, many are owned by the Gesuale family, including Town, County and State Recycling, LLC; Jezco of NY, LLC; and Jezco Containers, LLC. While Gesuales own many of the parcels, according to town documents attained, it's unclear whether they own other parcels, which list a company name as the owner.

The town is identifying the 40 or so acres as "Jezco properties" in its town documents and Planning Director Frank DeRubeis said the activity on the entire parcel is similar to that of the activity on the Town, County and State Recycling, LLC parcel, and all without permits.

John Gesuale, whose name is one of a few Gesuale family members appearing on town ownership documents, did not return a call for comment.

The legal action comes as the town is considering creating a new zoning category that would, through its enforcement, cease obnoxious uses and thus bring businesses that continue to operate there into compliance with the town code. It would also help the town go after businesses that continue to operate in violation of town code.

DeRubeis has been working on a three-pronged package to eliminate those prohibited uses in the industrial area.

First, he has put forth the potential new zoning category — medium industry — that would, he said, not allow the obnoxious uses that are there now but would allow some sort of outdoor storage.

Any outdoor storage allowed in a new zoning category would not be intrusive — activity that creates odors, noise or dust won't be allowed, he said.

Zollo noted at the April 25 Town Board meeting that the town may need the zoning category if it is unsuccessful in shutting down some businesses.

Because it allowed violations for years — DeRubeis said problems kept popping up and as the town got a grasp on one, another surfaced — the town has had little success in enforcing its current code, as judges have ruled against it.

DeRubeis explained in an interview that if the town has a zoning category for the companies, judges will be much more likely to help the town enforce its code.

DeRubeis pointed out the burden of proof is high for the town when it wants to shut down a business.

To shut down a business, "that's an extreme situation for the judge to do," DeRubeis said.

Instead, the town needs a viable alternative zoning category, like medium industry, to get the support of the courts.

He said repeatedly that the town's goal — with legal action and a potential new zoning category — is to eliminate the illegal uses there now, not legitimize illegal operations with a new zoning category.

"We are not looking at keeping the same obnoxious uses that are going on in the area," DeRubeis said. "The current users have to go."

The second part of DeRubeis's plan is to determine which businesses' properties would be rezoned. The town will have to decide whether it's a sweeping change to all parcels in the area, including vacant ones, or just to specific industrial areas. The Town Board would have to approve any new zoning category.

DeRubeis explained that the third part is to eliminate the illegal uses that are there now.

"The legal strategy is in concert with what else we're doing," he said. "The first two are useless" unless the third happens.

He suggested a way to "phase out" the uses, or amortize them.

DeRubeis would like to get the court to the point where the town says, "We can't accept what this business is doing," and the court says, "Show me the alternative you'll give the company."

If the court will say to the business, "The town gave you a way to exist legally, so follow that route," then the town will have success, DeRubeis said.

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