Kings Park and Commack residents have won the latest fight in their ongoing battle to get heavy industry out of their backyards.
Smithtown's Board of Zoning Appeals voted to deny KPE II a certificate of existing use that would legalize its pre-cast concrete business off Old Northport Road and Lawrence Road in Kings Park on Feb. 12.
KPE II sought for a certificate to legalize 13 different industrial uses on two properties totaling 14.2 acres in Kings Parks. Among the activities the company sought permission for include pre-cast concrete and cesspool fabrication, concrete manufacturing, concrete aggregate processing, concrete and rock crushing.
An attorney representing KPE II argued these business activities have been carried out on the property since the 1950s, and the new owners – who purchased the land from Karl Karlson in 2011 – seek to continue the business.
"The applications for the certificate of the existing use are denied because pre-cast concrete cesspool manufacturing facility; concrete manufacturing plant; concrete aggregate processing center are not lawfully conforming," wrote the BZA in its Feb. 12 decision.
In their 9-page decision, BZA members trace back the history of the area to 1932 when it was zoned "B-Residence" and industrial activity wasn't allowed. It was not until 1950, the town rezoned the east side of 7.5 acres to "G-Industrial," or Light Industrial, which specifically prohibited 54 uses including "any use noxious or offensive by reason of emission of odors, dust, fumes, smoke, gas, vibration or noise."
Commack and Kings Park residents complained of noise and odor issues at the Nov. 27 public hearing on KPE II's application, claiming to hear loud booms and explosive noises at night.
Board members found that sand mining might have been the only industrial activity that could have been legally carried out on KPE II's property after zoning changes in 1953 and 1955 permitted quarries by special exception – except the former owner Karl Karlson never filed for a permit. Sand mining was made illegal by town zoning changes again in 1963.
Residents' also testified Carbro Industries, previous owners of the site until 2011, had gradually discontinued many of its manufacturing activities and never performed as much concrete crushing despite KPE's assertion business has been conducted since the 1950s. Several times, it has filed permits to rezone the land for a potential housing development.
Under town code, if the previous or current owners stop nonconforming industrial activities for more than 12 months, those activities are no longer permitted as a right.
"Overall, the neighbors' testimony was more credible than the applicant's. Conspicuously missing was live testimony from the person who allegedly conducted the business from 1972 to 2011," the BZA's decision reads. "Further, no records of sales of pre-cast produces were presented."
Aerial photos submitted by KPE starting in 2001 that showed plants were growing back over the property, indicating "the area was not being used enough to prevent nature from reclaiming it," according to the board. Later aerial pictures from 2007 and 2010 show more plant regrowth and large vacant areas.
KPE II has up to 60 days to file an appeal with state courts.