The Appellate Division of State Supreme Court unanimously ruled against the Town of Oyster Bay's decision regarding the Taubman Company's proposed upscale mall on the Cerro Wire factory site in Syosset.

This decision, which was announced last week, upheld a prior decision by State Supreme Court Justice James M. Catterson in Riverhead in which he overruled a June 2001 decision by the town to deny Taubman's request for a special use permit to build an 860,000-square-foot mall on the site.

The Taubman Company challenged the town's original decision and brought the issue to court. In July of 2002, Judge Catterson ruled that the town did not base its decision on substantial evidence and annulled the decision made by the town board. In his ruling, Catterson concluded that in several instances the town's findings were "arbitrary and capricious and not based on substantial evidence." He also said the town failed to consider a scaled-down 750,000 square foot plan submitted by the Taubman Company

Shortly after Judge Catterson issued his ruling, the Town of Oyster Bay decided to appeal the decision made by him bringing the case to the Appellate Division of State Supreme Court. Local civic groups were granted permission to intervene in case.

In its ruling issued last week, the Appellate Division stated, "There was insufficient evidence to support a deviation from the initial SEQRA [State Environmental Quality Review Act] finding of the Town Environmental Quality Review Commission, which was in favor of the proposed project... Further, the Supreme Court properly determined that the town board abused its discretion in failing to consider the petitioners' offer of mitigation."

Town of Oyster Bay Supervisor John Venditto said he is "obviously disappointed" in the recent decision and that the town has filed a notice of intent to ask for permission to appeal. In order for a case to be heard by the court of appeals, one must first seek permission to appeal, which then needs to be granted before the court will hear any case.

According to Venditto, there are two main areas of focus and the first is if a mall belongs on the Cerro Wire site. "The town board and I did not think a mall belongs on this site," said Venditto. "Our position remains and nothing so far that emerged in the court system has changed our thinking."

The second area of focus, according to Venditto, is a July 2002 ruling by the court of appeals in regard to proposed expansion at the Roosevelt Field Mall. "The court of appeals, in a case related to development at to Roosevelt Field Mall, made a clear statement that so long as there is substantial evidence in a record before a town board, the town board can make its decision based on that substantial evidence," said Venditto. "It was up to the town board to decide what weight is to be given to the evidence before it. No one argues that in the Cerro Wire case there is substantial evidence on both sides."

Venditto said he is troubled as a town supervisor. "Two levels of the court system have done what the court of appeals said don't do - 'Don't substitute your judgment for that of a local town board that has been elected by residents to exercise zoning power.' These decisions have nullified the work of the town board and disenfranchised residents who elected the town board to make these decisions," he said. "There is a real clash between the legislative and the judicial branches of government and we really need the court of appeals to step in and direct or re-direct all of us."

John Harras, an attorney representing the Taubman Co. disagrees with the supervisor and believes that there is very little chance that the Court of Appeals will hear this case. "We are pleased with the decision," said Harras. "We don't believe this case warrants the Court of Appeals reviewing it. We have two courts that have unanimously determined that the town board acted arbitrarily and capriciously."

According to Harras, the court of appeals grants about five percent of the motions, which he said is a very low grant rate. Harras also stated that the court of appeals only takes cases that they believe are of exceptional importance.

"The day is fast approaching that we will finally be able to develop that eyesore into something that is beneficial to not only Nassau County with respect to taxes, but to get that site into something that is aesthetically pleasing," said Harras.

Town of Oyster Bay Councilwoman Bonnie Eisler said she is disappointed with the recent ruling. "I am very disappointed in the decision of the court," she said. "I feel that they have erred on the side of taking the opinion of the planning commission instead of the town board, which is supposed to be the lead agency."

The civic organizations that intervened in this case are also planning to submit a request to the Court of Appeals. "The civic associations are disappointed in the court's ruling but we are going to be seeking leave to appeal to the court of appeals," said Howard Avrutine, an attorney representing the civic associations. "We will be working closely with the Town of Oyster Bay on this. We are hopeful that the court will hear the case and reinstate the board's denial, which we think is totally appropriate. We think there are many strong reasons for them to favorably consider our request and we are hopeful that they are going to hear it."

The town submitted their request this week. The next step is to wait to hear from the court of appeals. Venditto expects to hear within the next 60 - 90 days if the court of appeals is going to take the jurisdiction.