By:Karenlyn Barone
The Village of Lynbrook will appeal the Feb. 4 decision of Supreme Court Justice Joseph A. DeMaro in which he upheld the right of a local business to maintain an oversized structure, namely a 77-foot-tall flag pole. In his decision, the judge cited the special beauty and significance the American flag has taken on since the terrorist attacks of Sept. 11, 2001. Local authorities say DeMaro-s ruling may very well set a nationwide precedent.
[Judge DeMaro] is a wonderful man and judge, and I say that from the bottom of my heart, said Lynbrook Village Attorney Peter Ledwith. But nonetheless, his patriotism and love for our flag seems to have obscured the way he applied the legal criteria to the case.
On April 27, 1999, without a village permit, Neil Toyota, on Merrick Road in Lynbrook, erected the flag pole. Within weeks, two Lynbrook police officers filed reports claiming that the pole seemed exceptionally tall and that the flag it flew appeared dangerously close to high-tension electrical wires. The officers had no way of foretelling the four-year battle their discovery would set off.
By way of the officers- reports, the Lynbrook Building Department was notified, and Lou Bello, then its superintendent, advised the dealership that the flag pole had been erected without permission from the village, and that it was, in fact, in violation of the village code. That code prohibits structures more than 40 feet tall. The flag pole was an astounding 37 feet taller than village code permitted. Bello instructed the dealership to apply to the Board of Zoning Appeals for a variance, which it did.
At the time, Ledwith brought the significance of the case to the board-s attention. In a letter, he wrote: This case is important to the village. The Board of Zoning Appeals is correct a flag pole is a structure. Granting of a variance is poor precedent for any future case.
One of Ledwith-s concerns was that granting a variance to Neil Toyota would set a standard, allowing other property owners in the village to violate the height code.
This concept applies in flag pole cases, significantly, said Ledwith. When cases come before the Board of Zoning Appeals seeking variances to build excessively high structures, they then have the right to point to other structures and claim they, too, have the right to build a structure higher than the code limit.
The Lynbrook Village Board of Zoning Appeals denied Neil Toyota a variance on three separate occasions, resulting in the filing of a procedural appeal, called an Article 78.
According to Ledwith, an Article 78 proceeding is decided with proper deference given to municipal boards and their decisions. The only time the decision of a municipal board can be reversed is if that decision is found to be arbitrary or capricious. Ledwith said a presiding judge must never substitute his judgments for those of the board.
The case was remanded twice before Judge DeMaro-s ruling vacated the decision of the board. He stated that the board was considering factors which have not occurred and which might not occur regarding other establishments also violating the village height code. And he called the board-s denial of the variance arbitrary and capricious.
Noting that his decision did not mean flag poles were immune from zoning regulations, DeMaro stated that it was important to note the altered nature of the flag-s impact since Sept. 11. His decision reads, After Sept. 11, the flag became the subject of a spontaneous citizen outpouring of loyalty, affection and grief displayed across the land.
The village contends that DeMaro-s decision went outside the guidelines of Article 78, and it will move forward with its appeal to the Appellate Division, 2nd Department.
DeMaro-s ruling was handed down even though, in his decision, he confirmed that the village code has a height restriction of 40 feet for any structure and that the flag pole is, in fact, a structure.
Judge DeMaro started his decision saying that this case is about the American flag, said Ledwith. That is not correct. In all three of the Board of Zoning Appeal hearings, the issue was the structure, i.e. the flag pole, not the flag. The judge must never substitute his own judgment for that of the board.
Sam Gadkar, a spokesman for Neil Toyota, contends that the flag and the flagpole are essentially one and the same. The pole itself has the sole purpose of flying the American flag, Gadkar said. The village is essentially saying it-s the flag we can-t fly. We-re ecstatic about the judge-s ruling, especially since what-s going on in the world recently. Since 9/11 we couldn-t be prouder to fly the flag as high as we do.
