By Cindy J. Roth
The state Supreme Court's written decision states that the town's Board of Zoning Appeals thoroughly evaluated all of the evidence and testimony presented by both the homeowners and theater owners before rendering their pro-expansion ruling in June 2001. The court also said that the variance given to the Bellmore Playhouse had a rational basis and was supported by substantial evidence.
"We're really happy the court upheld the BZA's unanimous decision," said Bellmore Playhouse Executive Vice President Priscilla Glennon. "I feel very strongly what was right came out of this."
The petitioners, Bellmore residents Charles Baker, Patricia Lange, Jill Murtha and Marion Roll, filed the Article 78 Petition in October 2001. An Article 78 Petition is the only way to appeal a government agency's decision, claiming the agency acted incorrectly.
The petitioners claimed that the BZA did not take into account the principle of res judicata, which prohibits the re-presentation of claims that were previously decided on their merits.
The BZA approved the Playhouse's second variance request filed in 1999 for an expansion from five screens to seven and 225 additional seats.
When first seeking a variance to open in 1996, the Playhouse sought approval for a seven-screen, 1,310-seat movie theater. During the variance application process, the Playhouse reduced its request to six screens and 1,124 seats.
In its 1997 decision, the BZA limited the Playhouse to five screens and 1,000 seats. The petitioners claimed the Playhouse should not have been allowed to file suit a second time for the same seven-screen variance since it had already been turned down by the zoning board, and that the zoning board should not have re-heard the same variance case. Petitioners believe if the Playhouse had a contention with the original variance outcome they should have appealed the decision in 1997.
The petitioners also claimed in their petition that the BZA omitted critical testimony and evidence. The court, however, asserts that "a party may seek a modification to a condition of a prior variance," and "it is clear the board's prior decision did not bar [Playhouse owners] from seeking changes."
Kenneth Lange, attorney for the petitioners, said he was disappointed with the outcome of the recent petition. His clients have not decided whether they are going to appeal the Supreme Court's decision at this time.
Marge Congello, president of the Central Bellmore Homeowners Association, expressed her disappointment in the decision, as well. The Central Bellmore Homeowners Association, which was not associated directly with the petition, was the Playhouse's main opposition during the BZA variance disputes.
Glennon said the variance request process was exhausting.
"We're just running a business," she said. "We've done nothing but the right thing. It's just a small minority that hates us; if not, we wouldn't be here. I wish I could make them all understand it's [two new] small theaters."
"The vacant space never goes away," Glennon added. "The Bellmore Playhouse is the best fit. A clothing store would cause more traffic."
Playhouse officials hope to move forward with construction as soon as possible. Once building permits are secured, Glennon said, construction of the two new theaters should require four months.
"I think the whole town would like to stop looking at those boarded-up windows," said Glennon.
