By Sabrina Artusa
In April 2023, the Smithtown Planning Board amended the Smithtown Town Code Chapter 322 to exclude “convalescent” and “resting” homes from being considered a special exception to zoning restrictions, thereby preventing a proposal submitted by Mills Pond Group LLC from progressing.
Mills Pond Group, owned by Frank Amicizia, filed a proposal to build a 97-bed living residence on the former Bull Run Farm in St. James the month prior to the board’s amendment. The proposal depended on the approval of the special exception application that would allow them to build the facility, Whisper Mills Assisted Living, in an area zoned as residential.
Before a public hearing could be scheduled regarding the special exception application, the code was changed, making the approval of the application impossible.
On March 13, Mills Pond Group filed a lawsuit against the town for condemning the project to a state of “limbo”, where their only option is to apply for a discretionary change of zone.
Smithtown Public Information Officer Nicole Garguilo said that tightening the conditions of a special exception application has long been on the town’s list of objectives. The application has been “used to circumvent the process” of a zone change, which requires more scrupulous environmental review and is more expensive. As a result, Garguilo said the previous town code “incentivizes special application.”
Written by Mills Pond Group’s attorney Lidia Szczepanowski, the lawsuit argues the “hasty” change in the town code was specifically intended to bar their project. By this basis, she claims the amendment is discriminatory toward individuals with disabilities and the Fair Housing Act, and several individuals have come forth as plaintiffs.
When the Town Board held a community meeting, there was what the lawsuit described as “vehement” opposition. Indeed, many residents were concerned with the congestion and influx of traffic such a large development would cause.
The lawsuit claims Town Board members verbally endorsed the project in 2019, when Amicizia proposed the development after buying the property, but changed their stance after hearing public opposition.
“There wasn’t support from the Town Board. There wasn’t support from the community and the applicant decided to file a lawsuit,” Garguilo said.
“Construction of a building of this size, with all the consequences that go with it, in the midst of single-family homes — in the midst of a bucolic, historic rural corridor — would be a huge step, a de facto spot zone change, and a mistake,” attorney and Smithtown resident Joseph Bollhofer wrote in a letter to Supervisor Ed Wehrheim (R) and the Town Board.
Among their grievances, Mills Pond Group claims that the town violated the 14th Amendment in neither granting nor rejecting their request for a public hearing.
Some community members feel that the Town Board should hold a hearing. Bollhofer is opposed to the proposal, but wants a public hearing nonetheless.
“Although I still believe it is a bad application in that the applicant cannot show that is satisfies the code requirements as they existed at the time of application, basic due process dictates that a hearing is required,” he wrote in a letter to Wehrheim and the Town Board.
Garguilo stated that the lack of support from the board and community prevented the special exception application from moving forward to a public hearing.
The current town code dictates that the board “may, upon application and after a public hearing … authorize a special exception for a hospital, nursing home, adult home or assisted living facility.” Convalescent and rest homes are excluded and the definitions of a nursing home, adult home and assisted living facility are altered.
Mills Pond Group demands monetary reparation, the law nulled and their attorney fees reimbursed. A court date has not yet been set.
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