By:John C. O'Connell
Judges dismiss neighbors' claims
A developer's plan to tear down the King Kullen supermarket on Merrick Road and build a new, larger one, with a new shopping center around it, received yet another nod of approval, this time from the Appellate Division of the State Supreme Court.
In a ruling issued Monday, a unanimous decision by four Appellate Division justices affirmed the Valley Stream Zoning Board's May 1999 approval of a site plan to build the new King Kullen shopping center.
Some residents around the site have protested the plan for more than two years, charging that the larger supermarket would create or exacerbate hazardous environmental conditions, cause dangerous traffic congestion, and change the character of their neighborhood for the worse.
Many of those neighbors, calling themselves the Concerned Citizens of Valley Stream, Inc., appealed the zoning board's approval to the Supreme Court in an Article 78 petition, arguing that the board had failed sufficiently to consider the environmental and other negative consequences of the plan. In strong language, the court denied their petition and dismissed their case in December 1999.
The Concerned Citizens petitioned the Appellate Division to overturn that ruling. On Monday, presiding Appellate Judges Fred T. Santucci, with judges Sondra Miller, William D. Friedmann and Robert W. Schmidt concurring, affirmed the Supreme Court decision originally rejecting the neighbors' case. The justices wrote that, "contrary to the petitioners' contention, the zoning board complied with the substantive requirements of SEQRA [the State Environmental Quality Review Act]."
"The petitioners contend that the conditional granting of, among other things, site plan approval violated SEQRA. We disagree," the judges ruled. "The record establishes that the [Zoning] Board was fully informed of all pertinent environmental issues, including those dealing with flooding and drainage and increased traffic, before granting its conditional approval. The Board also adequately identified and addressed the environmental concerns raised in the Draft Environmental Impact Statement and gave more than reasonable consideration to the issues raised by the public at the hearing. Moreover, the Board did not contravene the procedural requirements of SEQRA."
The judges added that "the petitioners' remaining contentions are without merit."
"It's been before the BZA for a number of years, dating back to 1994. Glad to see it's come to finalization," said Mayor Edward Cahill. "It should be a wonderful project that will make Valley Stream beautiful."
"I am glad this matter is resolved and look forward to having this blighted area finally developed," Village Clerk Vincent Ang told The Herald. Ang added that there are more actions required by the developer, Nathan Serota, before the King Kullen project can get under way.
"They still have to obtain a county demolition permit, resubmit a plan to the Zoning Board for final approval, get the county's approval and they must still submit construction plans to the village," said Ang this week.
Dominick Minerva, counsel to Serota for the King Kullen project, said that the case is just about closed now.
"We're pleased that the court has affirmed the decision of the lower court and found that the Board of Zoning Appeals of the Incorporated Village of Valley Stream took the required hard look at all of the environmental issues and fairly considered them all, and that their decision was proper."
Serota "has to obtain a building permit from the village. The county had already approved in principal the traffic flow plan in and out of the shopping center, so there's a pro forma approval that's required from the county but that's a foregone conclusion under the circumstances."
Minerva said that those opposed to the plan could still file a motion for leave to appeal this most recent ruling. Under the circumstances of this case, however, Minerva said, "where there really is no conflict between the [judicial] departments of the state and there is no decision of the Court of Appeal that is in conflict with this case, the chances are virtually 99 to one that the motion, if they file it, would be approved.
"Aside from that motion for a leave to appeal, they're finished," Minerva said. "They've lost the case. They've lost the case all along the way. It would be a waste of everybody's time for them to [file such a motion] but I don't put it past [the petitioners] to do it."
Anthony J. Campanelli, attorney for Concerned Citizens, said his clients are disappointed in the verdict and that they are pursuing what options they have. "This doesn't necessarily mean this is the end of the challenge. I have to discuss this with the 80 individual residents of the village who supported the petition and who continue to have concern about the additional one million cars annually that this project, if it proceeds, will generate or draw across the intersection of North Central and Merrick Road.
"Our position is that the true victim or the true loser, if any, of this action is the village," Campanelli said. "There remains a flooding problem and, more significantly, an egregious traffic problem which results from this project."
Asked what his clients' options are now, the attorney said that, "Of course, they could always appeal again, but I doubt that will occur. There are other issues to be addressed. The drainage issue still has not been resolved. It's my understanding the addressing of the drainage issue was not taken care of by the Zoning Board of Appeals. They basically tried to pass the buck to the county. But there still is no remedy in sight."
The Appellate Division judges did site the drainage issue in their decision, however, saying that the Zoning Board "was fully informed of all pertinent environmental issues, including those dealing with flooding and drainage and increased traffic, before granting its conditional approval...."
"That's primarily why I'm so disappointed," Campanelli said, "because they really did not come up with a solution. What they did instead was, they said, 'We'll approve the application subject to Nassau County's approval of the drainage issues.' What does that mean? You can't approve a drainage issue; you can approve a drainage plan. But as we speak today, there is no drainage plan. There's no drawing, no sketch, no leeching tanks, no catch basin. There's nothing showing the problem will be corrected. That's why I'm so disappointed.
"Ordinarily the appellate division gets it right on point. They're very good. Why, upon a review of the record, they determined that the village had given fair consideration to the issue, I don't understand."
