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Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay

January 27, 2009

IN THE MATTER OF OYSTER BAY ASSOCIATES LIMITED PARTNERSHIP, ET AL., PETITIONERS-RESPONDENTS,
v.
TOWN BOARD OF TOWN OF OYSTER BAY, ET AL., RESPONDENTS- APPELLANTS;
BIRCHWOOD CIVIC ASSOCIATION AT JERICHO, INC., ET AL., INTERVENORS-APPELLANTS.



In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Oyster Bay dated June 12, 2001, which denied the petitioners' application for a special use permit, the Town Board of Town of Oyster Bay and the Town Environmental Quality Review Commission appeal, by permission, and the intervenors Birchwood Civic Association at Jericho, Inc., Debbie Hunter, as President of Birchwood Park at Syosset Homeowners Association, and Warren Church, as President of Syosset Groves Civic Association, separately appeal, by permission, from so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated June 9, 2008, as, after a decision and order of this Court dated September 12, 2005 (Matter of Oyster Bay Assoc. Ltd. Partnership v Town Bd. of Town of Oyster Bay, 21 AD3d 964), reversing an order and judgment (one paper) of the Supreme Court, Suffolk County (Catterson, J.), dated November 23, 2003, inter alia, granting the petitioners' motion pursuant to CPLR 7806 and directing the issuance of a building permit, and a determination of the Town Board of Town of Oyster Bay dated September 25, 2007, inter alia, rejecting certain findings made by the Town Environmental Quality Review Commission pursuant to the State Environmental Quality Review Act (ECL art 8), granted the petitioners' motion to compel the Town Board of Town of Oyster Bay to adopt those findings, to issue a special use permit to the petitioners for the construction of a shopping mall with an area measuring 750,000 square feet, and, upon submission by the petitioners of a fully-revised site plan for a 750,000-square foot shopping mall, to process and review that site plan with all due haste.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON and RANDALL T. ENG, JJ.

(Index No. 16830/01)

DECISION & ORDER

ORDERED that the order dated June 9, 2008, is reversed insofar as appealed from, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, and the petitioners' motion is denied.

This is the third appeal in the litigation involving the proposed construction of a shopping mall in Syosset, arising from the petitioners' applications to the Town Board of Town of Oyster Bay (hereinafter the Town Board) for a special use permit and site plan approval. Following the petitioners' application, a review process pursuant to the State Environmental Quality Review Act (ECL art 8, hereinafter SEQRA) was commenced, with the Town Board as the lead agency. A public hearing was held before the Town Environmental Quality Review Commission (hereinafter the TEQR Commission), and the petitioners submitted a Final Environmental Impact Statement (hereinafter FEIS) for a 860,000-square-foot shopping mall. On July 25, 2000, the TEQR Commission issued its initial SEQRA findings, which were favorable to the petitioners.

Following a subsequent public hearing, the Town Board instructed the TEQR Commission to revise its initial SEQRA findings. Consequently, the TEQR Commission rescinded its original findings and issued revised findings. In response, the petitioners offered to reduce the size of the proposed shopping mall to 750,000 square feet. The Town Board never responded to this offer of mitigation and, on May 8, 2001, it adopted the TEQR Commission's revised SEQRA findings, and rejected the petitioners' offer of mitigation as insufficient and untimely. On June 12, 2001, the Town Board denied the petitioners' application for a special use permit.

The petitioners then commenced this CPLR article 78 proceeding, seeking to annul the Town Board's determination as arbitrary, capricious, and not supported by evidence in the record. In an order dated July 8, 2002, the Supreme Court vacated the Town Board's denial of the petitioners' application for a special use permit, finding that the Town Board failed to identify what evidence it relied upon in deviating from the TEQR Commission's initial SEQRA recommendation. The court explained that "if the [post-FEIS] submissions are good cause for the [Town] Board to deviate from [the TEQR Commission's] original recommendations, then such evidence requires that the Town Board continue with the SEQRA process in the form of a supplemental EIS." The Supreme Court then remitted the matter to the Town Board for "further proceedings not inconsistent with this decision in regards to the application as it stands and as mitigated by the petitioners' most recent proposal to reduce the square footage to 750,000 square feet." In a decision and order dated March 3, 2003, this Court affirmed the July 8, 2002, order of the Supreme Court, stating that the Town Board had "insufficient evidence to support a deviation from the initial SEQRA finding" (Matter of Oyster Bay Assoc. Ltd. Partnership v Town Bd. of Town of Oyster Bay, 303 AD2d 410, 410-411).

In an order and judgment dated November 25, 2003, the Supreme Court granted the petitioners' motion for judgment pursuant to CPLR 7806, modified the order dated July 8, 2002, and remitted the matter to the Town Board for the issuance of a building permit for the construction of an 860,000-square foot shopping mall. In a decision and order dated September 12, 2005, this Court reversed the order and judgment dated November 25, 2003, finding that our decision and order of March 3, 2003, "did not mandate the issuance of a special use permit, let alone a building permit, for the construction of an 860,000-square-foot mall" (Matter of Oyster Bay Assoc. Ltd. Partnership v Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966).

In an order dated June 11, 2007, the Supreme Court denied the petitioners' motion to compel the Town Board to issue a special use permit for an 860,000-square-foot shopping mall, holding that "[t]here must be follow through on the offer to mitigate impacts by reducing the application to 750,000 square [feet] as noted in those prior Court Orders." The Supreme Court thus remitted the matter to the Town Board to comply with the order dated July 8, 2002.

In response, in a resolution dated September 25, 2007, the Town Board listed numerous post-FEIS submissions which it considered in denying the petitioners' application for a special use permit for an 860,000-square-foot shopping mall. The Town Board determined that it would consider the petitioners' mitigation proposal for a 750,000-square-foot shopping mall, and requested, inter alia, a site plan for a 750,000-square-foot shopping mall, and a supplemental environmental impact statement (hereinafter SEIS) "covering the specific issues that have not yet been previously resolved."

Thereafter, the petitioners moved to compel the Town Board to adopt the TEQR Commission's July 25, 2000, SEQRA findings, issue a special use permit, and process and review the petitioners' proposed site plan. In an order dated June 9, 2008, the Supreme Court granted the petitioners' motion, directed the Town Board to adopt the TEQR Commission's July 25, 2000, SEQRA findings, issue a special use permit to the petitioners for the construction of a shopping mall measuring 750,000 square feet in area, and, upon submission by the petitioners of a fully-revised site plan for a 750,000-square-foot shopping mall, process and review the site plan with all due haste.

The Town Board appeals, by permission, and the intervenors Birchwood Civic Association at Jericho, Inc., Debbie Hunter, as President of Birchwood Park at Syosset Homeowners Association, and Warren Church, as President of Syosset Groves Civic Association separately appeal, by permission, from ...


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