RETAIL PROP. v. APPEALS BD.

• Decision Date: 01 July 2002
• Citation: 746 N.Y.S.2d 662,98 N.Y.2d 190,774 N.E.2d 727
• Parties: In the Matter of RETAIL PROPERTY TRUST, Respondent, v. BOARD OF ZONING APPEALS OF TOWN OF HEMPSTEAD, Appellant. INCORPORATED VILLAGE OF GARDEN CITY, Intervenor-Appellant; HARDY F. GLASS, INC., Intervenor-Respondent.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 190

774 N.E.2d 727

746 N.Y.S.2d 662

In the Matter of RETAIL PROPERTY TRUST, Respondent, v. BOARD OF ZONING APPEALS OF TOWN OF HEMPSTEAD, Appellant.

INCORPORATED VILLAGE OF GARDEN CITY, Intervenor-Appellant; HARDY F. GLASS, INC., Intervenor-Respondent.

Court of Appeals of the State of New York.

Argued May 29, 2002.

Decided July 1, 2002.

Cullen and Dykman, LLP, Garden City (Thomas S. Baylis of counsel), and Joseph J. Ra, Town Attorney, Hempstead, and Charles S. Kovit for appellants.

Certilman Balin Adler & Hyman, LLP, East Meadow (M. Allan Hyman, Donna-Marie Korth and Candace Reid Gladston of counsel), for respondent. Chief Judge KAYE and Judges SMITH, LEVINE, WESLEY, ROSENBLATT and GRAFFEO concur.

OPINION OF THE COURT

CIPARICK, J.

In March 1999, respondent Board of Zoning Appeals of the Town of Hempstead denied a request by petitioner Retail Property Trust (RPT) for a special exception to expand the structure and parking facilities on its property, the Roosevelt Field Shopping Mall, in order to accommodate a Saks Fifth Avenue department store. RPT then commenced this CPLR article 78 proceeding to annul the determination of the Board. After finding substantial evidence to support the conclusion that the proposed mall expansion would adversely affect traffic and air quality, Supreme Court denied the application and dismissed the petition. The Appellate Division reversed, finding the decision of the Board to be dictated solely by community opposition and thus arbitrary and capricious. We granted leave to appeal (97 NY2d 607 [2001]) and now conclude that the determination of the Board was supported by substantial evidence.

Roosevelt Field Shopping Mall is located in the Town of Hempstead near the border of intervenor Incorporated Village of Garden City. The mall, situated on approximately 110 acres, is located in a "Y Industrial District," in which a shopping mall and parking structures are permitted uses. In 1989, however, the Town Board adopted a maximum floor area ratio, or "FAR," in various districts, including Y Industrial Districts, that limited the total floor area of any building to four tenths (0.4) of the total land area.¹ The purpose of limiting building expansion in these districts was "to strike a better balance between economic growth and the preservation of [the] Town's precious natural environment" and to protect the Town from the deleterious effects of overdevelopment (Comments of Presiding Supervisor Mondello, Hempstead Town Board Meeting, Mar. 14, 1989). The Building Zone Ordinance was also amended to allow the Board of Zoning Appeals to permit a FAR in excess of 0.4, subject to enumerated conditions, and after public notice and hearing (see Building Zone Ordinance, art XXVII, § 267 [D]; § 272). Because the mall already had a FAR of 0.529 at the time of the enactment, it immediately became a preexisting nonconforming use.

By 1998, when RPT applied for the special exception at issue here, the mall had a square footage of 3,217,395 and a FAR of 0.696, having already been granted a special exception in 1995 to build additional retail space and parking structures in order to accommodate a Nordstrom's department store. Under the proposed 1998 plan, an additional 184,000 square feet of retail space and 187,000 square feet of parking space would be added to the mall, bringing its total square footage to 3,588,395 and its FAR to 0.75, nearly twice that permitted by ordinance.

Under Town of Hempstead Building Zone Ordinance, article XXVII, § 267 (D), the Board of Zoning Appeals may permit a special exception to a permitted but limited use provided that the proposed use (1) will not prevent the orderly and reasonable use of adjacent properties or properties in adjacent districts; (2) will not prevent the orderly and reasonable use of permitted or legally established uses in the district or adjacent districts; (3) will not adversely affect the safety, health, welfare, comfort, convenience or order of the town; and (4) will be in harmony with and promote the general purposes and intent of the zoning ordinance. The ordinance goes on to provide an illustrative, as opposed to exhaustive, list of considerations relevant to these requirements, including the effect that the proposed use may have on vehicular traffic congestion.

As required by the Building Zone Ordinance, public hearings were held in February and March 1999. RPT introduced a report entitled "Traffic Impact Study" prepared by VMI/Maris, a traffic and parking consultant, predicting that the proposed expansion would increase vehicular traffic in the area of the mall by about one percent during peak evening hours and by about two percent on peak Saturday hours. According to the report and testimony by the consultant, the additional traffic would have minimal impact on traffic conditions in the area of the mall.

RPT also presented an "Air Quality Study" prepared by a private engineering firm, Henderson and Bodwell, concluding that there would be little effect on air quality as a result of the expansion. Supporting this report was a letter from the New York State Department of Environmental Conservation agreeing with the conclusions reached in the study.

Objectors to the proposed mall expansion, including intervenor Village of Garden City, which operates a school near the mall, introduced their own expert report (the Salatti Report) in response to RPT's expert traffic report. The Salatti Report highlighted a number of concerns with RPT's traffic study, such as the failure to consider additional traffic yet to be generated by already approved land development projects in the area and future "as of right" building, as well as the use of overly optimistic assumptions about traffic patterns. In addition, the report disputed the characterization of additional traffic created by the proposed expansion as "de minimis" in light of the fact that the roads servicing the mall were already operating at or near capacity, causing drivers to seek "congestion relief" by using secondary roads running through residential areas, primarily in the Village of Garden City. Thus, in the imagery of the Salatti Report, even a drop in an already full bucket would cause the bucket to overflow.

The objectors also introduced, and their expert relied upon, the "Nassau Hub Study." The study, not prepared in connection with the mall expansion, is a comprehensive report of traffic and transportation issues...