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Can’t Court-Order Permits
by Ron Davis

Construction of a big new shopping center near Oyster Bay on Long Island, NY, is in jeopardy after the most-recent court ruling on plans for the project.

Those plans originally called for a 960,000-square-foot mall on land that required the local environmental-protection agency to approve construction. That agency subsequently approved the plans with award of a special-use permit. But any rejoicing by the developers was short-lived.

Town officials of Oyster Bay conducted a public hearing, at which numerous local residents voiced their objections to the shopping center construction. The developers responded by offering to reduce the size of the center to 750,000 square feet.

That offer failed to appease town officials. They subsequently rejected the developers’ concession as “insufficient and untimely.”

The developers then asked the courts to annul the decision by town officials as “arbitrary, capricious, and unsupported by substantial evidence.” A judge eventually ruled in favor of the developers and ordered town officials to approve the developers’ application “as it stands and as mitigated by their most recent proposal to reduce the square footage [of the shopping center] to 750,000 square feet.”

Town officials and local residents then appealed that ruling, but an appellate court upheld the order, directing the issuing of a building permit for the shopping center construction. The developers then demanded that town officials give them a permit for an 860,000-square-foot shopping center.

Opponents of the shopping center construction again appealed, arguing that the court had improperly modified a prior order. This time, the courts sided with opponents of the developers. Explained the judges, “The court erred in directing the issuance of a building permit in the absence not only of an original request for such relief but additionally the absence of a request for that relief [in subsequent appeals]. In any event, the court did not have the authority to direct the town officials to issue a building permit. Not only did the developers fail to obtain site plan approval, but they also failed to apply for a building permit to the Oyster Bay planning and development board.” (Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay, 801 N.Y.S.2d 612)

Decision: October 2005
Published: November 2005



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