The Town of Oyster Bay was ordered by State Supreme Court Justice James M. Catterson, in a decision announced last week, to issue a building permit to the Michigan-based Taubman Company to construct an 860,000 square foot shopping mall in Syosset.

The case has been in the hands of the courts since the town voted 6-1 in June 2001 to reject Taubman's application for a special use permit. The Taubman Company then appealed the decision and in July 2002, Justice James M. Catterson ruled that the town consider Taubman's 750,000 square foot alternative mall plan. That was appealed by the town and the Appellate Court affirmed the decision.

In the most recent decision, Judge Catterson said, "This Court hereby modifies its July 8, 2002 Decision and Order and the matter is remitted to the Town for the issuance of a building permit for the construction of the proposed 860,000 square foot shopping mall."

The town and the local civics, who intervened in the case, plan to appeal the latest decision regarding the 39-acre Cerro Wire Property.

According to Town of Oyster Bay Supervisor John Venditto, "the lower court judge made an error in that the judge substituted his judgment for ours and that should not be tolerated and that will be at the core of our appeal," he said.

"I think it is obvious that the judge in the lower court disagrees with the determination of the Oyster Bay Town Board," said Venditto. "Unfortunately, that is not his prerogative in a case of this nature. As everyone well knows, there was substantial evidence on the record at the hearing to support the view that the town board adopted to turn down the application. The judge on the lower court should not be substituting his judgment for ours. We, the town board, are elected by the residents of this town to make these decisions and to determine zoning applications, especially applications of this magnitude that have a bearing on the entire personality of the town. The residents are being disenfranchised."

Howard Avrutine, the attorney representing the Birchwood Civic Association confirmed the upcoming appeal "We are going to appeal the decision as we think it is wrong on several grounds," he said. "In our view, the judge had no legal authority to modify his prior decision, which was already affirmed. He is changing it now after the Appellate Court already affirmed it."

Avrutine said that the Appellate Division "completely and unequivocally" affirmed Judge Catterson's decision as it was written and if the Appellate Division wants to go beyond what the lower court has said, they would affirm, which they did, and also direct that the town was wrong and they should issue the permit, which they didn't do.

"Whether the town wants to appeal that is up to them, however the appeal would be substantially identical to the interim appeal that the town took to the Appellate Division and was decided in March," said John Harras, attorney representing the Taubman Company. "There are no new issues to appeal. We would view an appeal as a delay on the part of the town. We want to go forward as soon as possible."

According to Harras, it was a powerful decision by the court telling the town to issue a building permit, which is the last permit needed by Taubman. The original application to the town was for a special use permit.

Judge Catterson retained jurisdiction over this case so any future issues that arise would be directed back to Judge Catterson rather than starting the process from the beginning again.

Venditto said he is looking forward to the Appellate Review. "An error has been made by the lower court and there is precedence in other cases that have been decided by the higher court that make it clear that this judge made an error and it needs to be corrected," he said. "I am still confident that based upon the prevailing law in this jurisdiction, ultimately the town board will be vindicated and our decision will stand."

According to Venditto, the appeal process has begun and as he said, "the saga continues."