Calling the Town of Hempstead Board of Zoning Appeals' 1999 decision not to allow Simon Properties to expand Roosevelt Field Mall even further beyond the allowable Floor Area Ration (FAR), "arbitrary and capricious," the Supreme Court of the State of New York Appellate Division: Second Judicial Department ordered the board to conduct an Environmental Conservation (SEQRA) review and reconsider the application.

Floor Area Ratio is a figure used in commercial zones, as a guideline for how large a building can be on a particular lot. The area where the mall is located is currently zoned to allow a .4 FAR, meaning that the land can be occupied by a building with the square footage which is 40 percent of the square footage of the total property. This FAR was established in 1989, after the mall had already been built. In March, 1999, the Town of Hempstead Zoning Board of Appeals denied Simon Properties' request for a special exception permit to expand the Roosevelt Field Mall to a .75 FAR, an 87.5 percent increase over the town's permitted FAR of .4. The mall had already been granted special permit in 1995 to expand to a .696 FAR in order to allow for the building of Nordstrom's Department Store. The Town's 1999 decision made it impossible for Saks Fifth Avenue to relocate from Franklin Avenue in Garden City to the mall.

The Village of Garden City played an active role in blocking this proposal for the expansion of the mall. There was a grassroots effort, which included the village trustees, POAs, chamber of commerce, board of education and residents from throughout the village. In addition to the Village of Garden City, the Nassau Council of Chambers of Commerce and civic groups throughout central Nassau objected to the proposed expansion. The basis of these objections were the effect that the expansion would have on the traffic and on surrounding communities.

Simon Properties tried to appeal the town's decision at the Nassau County Supreme Court level, but in November 1999, the court denied their petition and dismissed the proceeding.

The Supreme Court of the State of New York Appellate Division: Second Judicial Department "Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination dated March 24, 1999, is annulled, and the matter is remitted to the Board of Zoning Appeals of the Town of Hempstead to conduct a review pursuant to the New York State Environmental Conservation Law, and thereafter to issue a new determination with respect to the special exception permit."

Joseph Ra, Town of Hempstead attorney, noted that the language of the court's current decision is very strong. "What it says is, 'Had you completed the SEQRA process, we would have granted the special exception permit. Because you didn't, we're sending it back to the board of zoning appeals to complete the environmental process,'" said Ra.

The court's decision stated that it is not permissible for a town board to deny a special exception permit solely on the basis of generalized concerns of the surrounding community members. "In this case, the determination of the Board of Zoning Appeals of the Town of Hempstead denying the special exception permit was arbitrary and capricious," reads the decision. "Although there was strong community opposition to the expansion of the Roosevelt Field Mall to include a Saks Fifth Avenue store, the board's findings that said expansion would be detrimental to the area due to the increased noise, traffic, and diminution of air quality were not supported by substantial evidence. The generalized complaints of the residents as to, among other things, increased traffic, and the summary criticisms of the experts who testified on behalf of the Village of Garden City, were uncorroborated by any empirical data, and thus, insufficient to counter various expert opinions based upon traffic and air quality analyses." Based on this reasoning, the Supreme Court of the State of New York said that there was no basis for the town board of zoning appeals to deny the Simon application.

Ra said that the town believes the appellate division is wrong on the law. "The board of zoning appeals had people, residents, before them making the various complaints about traffic and air quality, but those complaints were backed up by various experts that the village brought forward and so it's not a question of just accepting someone who's not well-versed and well schooled in traffic matters and air quality matters, there were experts there," said Ra. "I think what the court was saying here is that we believed the Village of Garden City experts and didn't believe the applicants' experts." Ra noted that believing one set of experts over another set of experts is what the board has to do in order to make a decision in any case. "What I think happened here is the appellate division is substituting itself for the board of zoning appeals and that's where we think they are incorrect in their ruling," said Ra.

Herb Balin, the attorney representing Roosevelt Field in this case, stated, "The decision is very clear that the board should have granted the permit." Garden City Village Administrator Robert Schoelle released a statement, saying, "We are troubled by the findings of the appellate division... We are asking the Town of Hempstead's Board of Zoning Appeals to allow us to be heard on the SEQRA issue."

According to Ra, the town has been in touch with the Village of Garden City and their attorneys and have decided to file a request with the Court of Appeals for the State of New York, to get permission to appeal to the Court of Appeals. Because the appellate division's decision was 4-0, the town needs to get permission in order to appeal. Ra said that the town attorneys along with the Village of Garden City's attorneys, are currently preparing the papers to appeal. Ra noted that if they were not going to appeal, because of the wording of the appellate division's decision, the case would be going back to the town's board of zoning appeals for the completion of the environmental study. "Then, whether the applicant met whatever remediation the board of zoning appeals decided was necessary to make the project go forward would determine whether or not they would get their permit," said Ra. There is a 30-day window in which the appellate division's decision can be appealed. Ra noted that the town and village will be filing their appeal within the next 2-3 weeks. The appeal will be filed with the Court of Appeals of New York State, the state's highest court. The attorney said that the court of appeals can take as short or as long a time as they want before announcing whether they would allow an appeal but added that once the town and village file their papers, a stay is granted so the town does not have to comply with the appellate division's decision.

It is still undetermined how this decision will affect the current proposal, by Simon Properties, who recently acquired more property to increase the amount of land considered in the FAR, to build a two-story department store and additional retail space. The hearing on the revised expansion proposed by Simon is scheduled to take place on June 21. Ra said he believes that a decision will be made by the court of appeals prior to that hearing. "I would suspect that if, in fact, we lose in the court of appeals, they [Simon Properties] would probably withdraw that other case," said Ra. "If we win in the court of appeals then Simon won't withdraw their case." Balin stated, "The chances are that we will withdraw that proposal. Somebody's going to take an appeal and when the appeal is dismissed the board has to do a SEQRA determination, but eventually they are going to have to grant this permit and we'll withdraw the other application."

Kevin Ryan, from Ryan and Ryan, the public relations firm that represents the four Simon Malls on Long Island, said that he did not believe a decision had been made as to what businesses would go into the space that could be built under the appellate division's ruling or what business would go into the soon-to-be-vacated Stern's store. He would not comment on the rumor that Saks plans to move into what is currently Stern's and that Nieman Marcus would be moving into any new space allowed, rather than occupying the controversial yet-to-be-built Cerro Wire Mall in Syosset.