Ellsworth Allen Park expansion proceeding
In the not-so-distant future, what was once a Superfund site will become part of Ellsworth Allen Park on Motor Avenue in Farmingdale.
The Town of Oyster Bay will lay out athletic fields, a walking trail and fitness stations on ground that once covered decades’ worth of some of the most toxic compounds that industrial activity can generate. Over the past decade, the town seized the land for expansion via eminent domain.
On Dec. 13, the Appellate Division’s Second Department of the state court system reversed a 2016 judgment by the Nassau County Supreme Court that awarded compensation to Huntington-based 55 Motor Avenue LLC, a principal claimant in a lawsuit against the town. The firm owned three tax parcels totaling 30½ acres next to the park, and in 2003, using eminent domain, the town acquired a 14.03-acre parcel adjoining its recreational property (identified in the court documents as parcel 1).
The town paid $3.27 million for the parcel, but 55 Motor Avenue sued, claiming the land and its adjoining parcel was valuable because of the potential for setting up a retail complex. It asked for $20.7 million in “just compensation.” With added interest over the intervening decade, according to Deputy Town Attorney Donna Swanson, the judgment had swelled to about $33 million.
In 2010, Oyster Bay also condemned the middle lot (parcel 2), covering 7½ acres. It paid $4.45 million. This portion is part of a separate suit and according to Marta Kane, a town spokesperson, it’s expected to go to trial sometime this year. It could not be learned what the claimant is seeking in damages. Both the town and the developer are having the property assessed.
55 Motor Avenue retained the 8.7-acre easternmost lot (parcel 3), fronting Main Street, and leased the land to Stop & Shop. In 2010, the supermarket chain erected an 80,000-square-foot store.
“We are thrilled by this decision,” said Oyster Bay Supervisor Joseph Saladino. “The court’s unanimous ruling affirms what we have felt all along; that what the town initially paid for this property was accurate and just. This is great news for our taxpayers as the savings amounts to over $30 million. We can now continue our focus on what’s really important, the redevelopment of this property so our residents can have the beautiful park they were promised and deserve.”
At its Dec. 12 meeting, the Oyster Bay Town Board voted to hire Syosset-based LiRo Engineers at a total cost of about $513,000 to supply engineering services. These will include a design phase (design, traffic studies, soil borings and public meetings) and a construction phase in which it will administer and inspect the landscaping and construction activities. Seven firms had responded to a request for proposals for the contract.
At an earlier town board meeting, Commissioner of Parks Joe Pinto observed that Allen Park currently has two baseball and one multipurpose fields, and a series of public hearings held six or seven years ago revealed that the public wanted more fields.
The Legalese
In the narrative of the appeal decision, it was noted that the entire property was zoned LI (light industrial) at the time of the town’s condemnation, and 55 Motor Avenue sought and gained a special use permit from Oyster Bay in 2008 in order for its tenant, Stop & Shop, to operate a supermarket in parcel 3.
The developer hired a planning expert who determined that the “highest and best use” of parcels 1 and 2 was a retail center of more than 330,000 square feet complete with big box store. He further concluded that his client could garner special use permits necessary for such a complex. The consultant determined the market value of parcel 1 as $20.7 million, equaling the award sought by his client.
The town countered that “the claimants failed to demonstrate a reasonable probability that a special use permit would have been granted for retail use on parcels 1 and 2, and proffered an expert opinion that the highest and best use of parcels 1 and 2 was a ‘low density’ industrial use, such as a warehouse or research and development building, which were as of right uses in the LI—light industrial—zoning district.”
In its decision, the Supreme Court wrote “that parcels 1, 2, and 3 should be valued as one economic unit, and that the highest and best use of the subject property on the date of the taking ‘was retail development of the maximum allowable density…so as to accommodate big box retailers.’ ”
The court also accepted the claimants’ figure of the market value of the property, and awarded the principal sum plus interest.
The four-judge appellate panel ruled that the lower court had erred in determining that parcel 3 “should be valued as one economic unit with parcels 1 and 2.” It noted that 17 months before the town’s condemnation, 55 Motor Avenue had, in its lease with Stop & Shop, granted the supermarket the right to erect a fence and separate itself from the other parcels—and even take legal action against anyone in the adjoining parcels who wanted to use any portion of parcel 3.
It also found wanting the Supreme Court’s determination that retail was the best use of parcels 1 and 2, and criticized the planner for his assessment of his client’s probability of earning special use permits for such use.
Soiled Legacy
The property has a tortuous environmental history. Starting in the 1930s, aircraft parts manufacturing and metal finishing facilities operated there, mainly under government-owned entities. The most prominent of the firms owning the property after the war was Liberty Industrial Finishing Corp. Through the 1980s, manufacturing facilities dotted the industrial park, and operations included metal plating and finishing, and fiberglass production.
According to an account by the federal EPA, “Materials used in these operations included volatile organic compounds (VOCs), inorganic compounds, caustics and acids. Untreated industrial wastes were discharged into below-grade sumps, underground leaching chambers and unlined wastewater disposal basins. These practices led to the contamination of site ground water, sediments and soil….In June 1986, EPA listed the site on the Superfund program’s National Priorities List (NPL).”
Investigation and remediation began in 1991 and continued into the next decade. It included a water treatment system. The EPA also directed that 750 tons of PCB-contaminated shredded auto-fluff be removed from a building at the site.
The EPA, in a document about the site, noted that it aims to turn contaminated properties into usable and productive ones. As early as 2001 the agency learned of the town’s plans. According to a narrative, “When EPA issued the proposed final cleanup plan in the summer of 2001, it included a proposed cap for the western part of the site. The local community and the Town of Oyster Bay objected and requested that EPA consider a cleanup that did not cap contaminated materials in place. Town officials hoped to acquire the nearly 15-acre western tax lot for the expansion of neighboring Ellsworth Allen Park. The town and the community were concerned that capped contamination might limit future recreational reuse of the area. EPA worked with the community on a remedy that could accommodate recreational reuse of the western area and…selected a final remedy that would allow for recreational reuse on the western tax lot, contingent on the Town of Oyster Bay taking significant steps toward acquisition (through eminent domain) within eight months.”
In 2014, the EPA declared the site ready for development.
