The New York State Court of Appeals, the state's highest court, has reversed a lower court decision in an important zoning action involving the Roosevelt Field Mall. Cullen and Dykman LLP successfully represented the Village of Garden City in this matter. The suit involved the proposed expansion of Roosevelt Field Mall, the largest mall on the Island and the fifth largest mall in the nation, which borders Garden City.

In 1999, the Town of Hempstead's Board of Zoning Appeals (BZA) denied the application of the mall's owner, The Retail Property Trust, to further expand the mall and build 184,000 square feet of additional retail space and a 187,000 square foot third level to the north parking deck in connection with the opening of a Saks department store. The mall needed a special exception to build the proposed additions because the mall already exceeded the square footage permitted by the local zoning code.

Garden City opposed the expansion because of the effect it would have on traffic in the area and environmental conditions in and around the mall and because of the close proximity of the Stewart Avenue Elementary School to the mall. The village retained a traffic expert and an environmental expert who both studied the proposal and testified in opposition to the application. The mall put forth experts who supported the application. After a hearing at which proponents and opponents to the application were heard, the matter was submitted to the BZA.

The BZA denied the application in a unanimous (7-0) decision dated March 24, 1999. The mall's owner commenced an Article 78 special proceeding in the Nassau County Supreme Court to challenge the denial of its application, arguing that there was not substantial evidence in the record to support the BZA's decision.

The court, by Justice Burton S. Joseph, denied the petition in a judgment decision and order dated November 30, 1999. The Retail Property Trust then appealed the court's ruling. The appellate court reversed the trial court's judgment in a Decision & Order dated March 19, 2001 and referred the matter back to the BZA for further proceedings. The Appellate Division, Second Department found that the BZA's denial was based solely upon strong community opposition and was not supported by substantial evidence. The Second Department's decision was based, in large part, upon the fact that the experts who testified against the application did not perform their own empirical studies.

The BZA and Garden City appealed the decision to the Court of Appeals. On May 29, 2002, Thomas S. Baylis of Cullen and Dykman LLP argued that the appeal on behalf of Garden City and the BZA. The appellants argued that the experts who testified against the application relied upon data collected by the applicant and other data set forth in the extensive Nassau HUB study and that their expert testimony and traffic report gave the BZA room to choose between the competing experts. The appellants further argued that a long line of zoning cases establishes that where there is room to choose between competing expert opinions, the decision of the local zoning board is supported by substantial evidence and the courts should not substitute their judgment for that of the zoning board.

In a July 1, 2002 opinion, the Court of Appeals found in favor of Garden City and the BZA and reversed the Second Department's order. The Court found that the BZA's decision was based upon substantial evidence, specifically, the expert opinions offered by the experts Garden City put forth.

The Court held: "Through the reports of objectors' traffic and air quality experts, the opposition presented valid scientific bases for rejecting the expansion plan, which the Board in its discretion was authorized to credit." The Court continued: Giving the Board of Zoning Appeals the deference to which it is entitled under such circumstances, we conclude that it acted rationally and with the support of substantial evidence in denying petitioners' application for a special exception permit."

The Court reversed the Second Department's order, with costs, and remitted the matter to the Second Department for consideration of issues raised but not determined on the appeal to that court.

Along with Baylis, Peter Mastaglio and Gerard Fishberg also of Cullen and Dykman LLP represented Garden City in this matter.