New York Law Journal
Mall Gets a Green Light
By Vesselin Mitev
June 17, 2008

A Suffolk County judge has ordered the Town of Oyster Bay to grant the special use permit that would allow Michigan-based Taubman Centers Inc. to construct a controversial 750,000-square-foot mall in the hamlet of Syosset.

The town has "fully exhausted all of its discretion, as well as all reasonable patience" through its efforts to block The Mall at Oyster Bay, first proposed 10 years ago, said Supreme Court Justice Jeffrey Spinner (See Profile) in Oyster Bay Associates Limited Partnership v. Oyster Bay Town Board, 16830/2001.

The decision appears on page 28 of the print edition of today's Law Journal.

"The point has been reached where this Court must act to resolve this matter," wrote Justice Spinner in a decision faulting the town for what he termed "purposeful affirmative acts of continuing obstinacy and persistent obfuscatory obstructionism."

The town initially denied approval for the mall in 2001. Now, it and local civic associations plan to appeal Justice Spinner's latest opinion, which one attorney called "judicial usurpation" of elected officials' zoning power. It would be the third mall-related appeal in the Appellate Division, Second Department. 21 AD 3d 964 (2005), 303 AD 2d 410 (2003).

Justice Spinner sharply rebuked Garden City attorney Peter Sullivan, whose firm represented Oyster Bay, for conduct the judge called "unreasonably passionate, unusual, counterproductive and even annoying."

According to the decision, Mr. Sullivan, a partner in Berkman, Henoch, Peterson & Peddy, throughout the "entirety of the submissions," put forth "self-serving redefinition[s] of what everyone on behalf of Petitioners, and the Court, did, meant, or intended, re-interpreting every fact and word," in a manner that Justice Spinner found "preposterous, and sanctionable."

The judge also criticized Mr. Sullivan for "unnecessary and ill-conceived ad hominem attacks on other professionals," including the judge with regard to his decision to reject requests from mall opponents that he remove himself from the case.

However, while he faulted Mr. Sullivan's conduct as "sanctionable," Justice Spinner did not impose any penalties. Mr. Sullivan did not immediately return requests for comment.

Last year, Justice Spinner acknowledged he had "erroneously executed an Order of Recusal" after returning from a three-week illness (NYLJ, June 22, 2007). He later revoked that action, saying that there was no justification for a recusal and suggesting that the request had been a delaying tactic by mall opponents.

The mall would be built on 39.5 acres on the Long Island Expressway in Syosset, on the former site of the Cerro Wire and Cable Company factory. It would feature highend retailers like Neiman Marcus, Nordstrom and Barneys New York. The project is expected to cost $500 million.

In his 2007 ruling, Justice Spinner held that he could not compel the town to grant a permit at that time. Instead, he ordered officials to identify any specific shortcomings in the developer's plan regarding environmental impacts.

In his latest ruling, Justice Spinner concluded that the final environmental impact statement (FEIS) prepared by the developer "does not contain information that can justify a denial of Petitioners' application."

He said that his action in sending the application back to the town board had been done solely to give the town a chance to either identify "substantial evidence to support its denial of the application" or to justify preparation of supplemental environmental impact statement (SEIS).

No such evidence was identified, ruled the judge, despite assertions by the town of changed circumstances involving traffic patterns, a nearby redeveloped office building and a bigger library.

"It is well settled that the mere passage of time does not require the preparation of an SEIS to update information in the EIS," wrote Justice Spinner, noting that a supplemental statement is required only if it can be shown that a "significant change in relevant conditions" could have potentially "significant adverse impacts" not previously considered.

"[T]he record conclusively demonstrates that Respondent failed to properly identify relevant areas of environmental concern that were not substantially and significantly addressed satisfactorily in the FEIS," the judge wrote, adding that the town also "failed to take a hard look" at the developer's proposal to reduce the scope of the project, originally slated for 860,000 square feet.

Therefore, he said, the town "failed to make a reasonable elaboration for the basis of its determination [denying the permit], causing all of their Findings to be annulled because they are arbitrary, capricious or unsupported by evidence."

Community Opposition
Town officials plan to appeal.

"I kept an open mind in anticipation of this decision, I was hoping that we would prevail, but even if we did not prevail, that the court would tell us once and for all what we did wrong," said Oyster Bay Supervisor John Venditto, in an interview. "We are in an ugly situation where a court of law is substituting its judgment for the duly elected Oyster Bay Town Board and that cannot stand."

Mr. Venditto said that the town issued its original denial after balancing the factors of potential economic growth against a burden on the "quality of life" and environmental concerns. The process, he said, should have been a simple one. Instead, over the last seven years, it has grown into a "convoluted" legal maze of decisions on motions, "one more confusing than the last."

Mr. Venditto also expressed concern about Justice Spinner's intention to remain involved in the case. The judge ordered the parties back in court within 90 days to "establish compliance" with the court's order.

"The [Court] says I'm going to ride roughshod over the town of Oyster Bay, and the court in this decision has set itself up as the Oyster Bay town board, totally disenfranchising the duly elected board," Mr. Venditto said.

"If this mall is built the traffic nightmare that will ensue will devastate this community," said Howard D. Avrutine, the Syosset attorney representing civic associations made up of homeowners who live near the proposed project site. "Their quality of life will be so negatively impacted. The road network cannot handle the volume of traffic that will be produced."

Mr. Avrutine, a partner in Goldstein & Avrutine, echoed the town's plan to challenge the ruling.

In his decision, Justice Spinner referred to the position of Mr. Avrutine's clients as "curious and unusual" as the civic associations are "clearly not within the zone of interest" and therefore lacked standing to participate in the lawsuit.

However, as their inclusion has not been challenged, they remain in the case, the judge wrote.

An attorney for the developer suggested that the civic associations are acting as a front for Simon Properties, which owns two competing malls in the region. The goal of Simon Properties is to "keep Taubman out of Long Island," said Morton Weber, of Melville-based Weber Group, which represents the mall developers in an interview.

"There is no secret that Simon Properties has been financing the civics in this litigation and this is certainly nothing new," said M. Allan Hyman, a partner in the East Meadow office of Certilman Balin Adler & Hyman, which represents the three civic associations, along with Goldstein & Avrutine.

Birchwood Civic Association, Birchwood Park at Syosset Homeowners Association and Syosset Groves Civic Association have all "joined the town contesting Taubman's rights to develop [the property]," said Mr. Hyman in an interview.

"I view the decision as a judicial usurpation of the town's power to properly zone and provide for [environmental] review in the area of real property development," he said.

- Vesselin Mitev can be reached at vmitev@alm.com.

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