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A state judge has set aside approval for Long Island’s first Wal-Mart Supercenter, ruling that the Town of Riverhead went against its own law and zoning code in granting the application. In a pair of decisions, Riverhead PGC v. Town of Riverhead and Harris v. Town Board of Riverhead, 19433/20504-07, Supreme Court Justice Thomas F. Whelan of Suffolk County ( See Profile) held that the town board “cannot ignore the express statutory regulations” governing site approvals. The decisions will be published Tuesday. “One of the most cherished principles of our democracy is the respect and deference accorded our governing laws by our citizenry,” the judge wrote. “Town Boards are not exempt from that fundamental ideal.” Anthony S. Guardino, a partner with Farrell Fritz in Uniondale who is not involved in the case, said the decision is significant because it “clearly states” that only zoning boards, not town boards, have the power to depart from lawfully enacted zoning requirements. But Mr. Guardino, a Law Journal columnist, noted that “there are a number of towns and villages on Long Island that have granted some variance power to other boards.” The two challenges to the construction of a 170,000-square-foot Wal-Mart Superstore on Route 58 were brought by several members of the United Food and Commercial Workers Union and Riverhead PGC, the owner of a plaza on Old Country Road two miles away that already rents space to a smaller Wal-Mart. The suits claimed the union members and the plaza owner would suffer direct injury due to increased traffic and alleged that the supercenter’s proposed food court and car repair service were not permitted uses under the parcel’s zoning district. In June 2007, after years of litigation over the proposed site, the town board granted an application to the parcel owner, Headriver, to build the store. The construction permit also covered an open-air garden center and separate building. In order to fit the store on the parcel, the town granted variances to the developers to build closer to the edge of the road, shrink the size of the parking lot and make the parking stalls smaller than the town otherwise would have allowed. The parcel in question has been the subject of years of litigation. In 2001, Headriver had applied to build a Lowe’s home improvement store on the same parcel. The Suffolk County Planning Department recommended against issuing a special permit, as the project was an “unwarranted further intensification of retail commercial development,” according to the decisions. As a result, a super-majority of four votes by the town board was needed to adopt the site plan. In February 2002, the super-majority failed and the Lowe’s permit was denied. Headriver brought suit to review the determination, and eventually switched its application to build the Wal-Mart Supercenter. Instead of purchasing development rights, Headriver proposed giving $850,000 to the town’s community development funds. In November 2005, Headriver submitted an environmental impact statement for the amended site plan application. One year later, the county planning commission objected to the project in a letter, taking issue with the variances and “the increase in traffic generation of Route 58 further diminishing the safety and traffic carrying capacity of the road.” Suffolk County Executive Steve Levy echoed those concerns in an April 2007 letter to Town Supervisor Phil Cardinale. He complained about construction too close to the county right of way, warning that the “Wal-Mart application is one that has the potential to further saturate this already heavily trafficked road.” The next month, the town board amended its own code, granting itself authority to issue variances. The board changed the wording of the law from “the agency responsible for commercial site plan approval” to “Town Board” and approved the site plan in June 2007. Before the court, the town argued that it was simply correcting “certain typographical errors” when it amended its code. ‘Substantial’ Change Justice Whelan declined to accept that argument, concluding that the changes were “substantial and cannot be deemed to be de minimis.” New York Town Law §274-a provides that a town board has the authority to direct its planning board to review and grant site plan applications, as well as “waive any requirements for the approval.” However, such a waiver would be conditioned on whether the requirements are counter to the “interests of the public, health, safety or general welfare or inappropriate for a particular site plan.” That was not the case here, Justice Whelan said. Looking to the commentary and the legislative history of the statute, Justice Whelan held that the law was meant to authorize a “planning board or other reviewing body ‘to waive any particular pre-established requirement . . . while, concurrently, authorizing ‘direct appeals to a [zoning board of appeals] for an area variance.’” Thus, the proper authority to review and grant the application would be a zoning board, he said. “It is axiomatic that only the zoning board can vary the requirements of the Zoning Code,” Justice Whelan wrote, adding that it is “[w]ell established that . . . the Town Board may not assume jurisdiction that has been given to the zoning board.” The judge also held that building a car repair shop and food court were not permitted uses under the parcel’s zoning district. “The Town Board, in its role as site plan administrator, cannot approve site plan applications that run counter to the Town Law, its Comprehensive Plan, and its own zoning codes,” the judge wrote. James F. Gaughran of Huntington represented the union members who work at local supermarkets. “It’s a significant land use decision – town boards should not be able to usurp the authority that state law gives zoning boards,” Mr. Gaughran said in an interview. Joseph F. Buzzell of Rivkin Radler in Uniondale represented Riverhead PGC. He said his client was concerned that the project would compound traffic congestion in the area and “would have had the same objection whether it was Wal-Mart or another big-box store.” Riverhead Town Attorney Dawn Thomas declined comment pending a review of the decision with the town board on Oct. 21. A Wal-Mart spokesman said the company, which is represented by Manatt, Phelps & Phillips in Manhattan, had not decided whether to appeal. Linda Margolin, of Bracken & Margolin in Islandia, who represents Headriver, declined comment. [email protected]

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