By:Cindy J. Roth
Variance Timeline
In 1996: Bellmore Playhouse files a variance request for a seven-screen, 1,310-seat theater.
* While the variance is pending, Playhouse owners reduce the request to a six-screen, 1,124-seat theater.
In 1997: Board approves Playhouse variance for a five-screen, 1,000-seat theater.
In 1999: Bellmore Playhouse files a second variance request for a nine-screen, 1,499-seat theater.
* While the variance is pending, Playhouse owners reduce their request to a seven-screen, 1,209-seat theater.
In 2000: Board approves Playhouse variance for a seven-screen, 1,225 seat theater.
Four claim Hempstead Town zoning board's expansion decision was unlawful
Four Bellmore residents recently filed suit against the Town of Hempstead Board of Zoning Appeals, the Bellmore Playhouse and the movie-theater property owner, Marco LLC, claiming that the BZA's unanimous approval in June this year of the Playhouse expansion by two screens was unlawful.
The plaintiffs, Charles Baker, Patricia Lange, Jill Murtha and Marion Roll, claim in a petition filed at the Nassau County Clerk's Office that the legal principle of [ITAL] res judicata UNITAL bars the Playhouse owners' second 1999 variance request. [ITAL] Res judicata UNITAL prohibits claims that were decided on their merits from being presented for review again.
When first seeking a construction variance in 1996, Playhouse owners sought approval of a seven-screen, 1,310-seat movie theater. They then reduced the request to six screens and 1,124 seats while the variance application was pending.
In 1999, they sought expansion from five screens to nine and 1,000 seats to 1,225. Playhouse owners later reduced their request to two new screens with the same 225 additional seats. The zoning board approved the application.
In its 1997 decision, however, the BZA had limited the Playhouse to five screens and 1,000 seats. The plaintiffs claim the Playhouse should not have been allowed to file suit a second time for the same seven-screen variance, since the zoning board had already turned it down. The plaintiffs argue that, if the Playhouse owners wanted to dispute the original variance decision, they should have appealed it in 1997.
The plaintiffs also claim that the BZA's "inconsistent and erroneous findings as well as its contradictory evidentiary rulings during the hearings were arbitrary, capricious and constitute an abuse of discretion," and that the board's decision contained factual inaccuracies and omissions of critical testimony and evidence.
Kenneth Lange, attorney for the petitioners, and Bellmore Playhouse owner Michael Petracca, could not be reached for comment. A representative from the Town of Hempstead Attorney's Office handling the lawsuit for the BZA said the town does not comment about pending litigation.
The Bellmore Homeowners Association, which isn't tied to the pending lawsuit, was the Playhouse's main opposition during the BZA variance dispute last year.
In June, association President Marge Congello said homeowners near the playhouse were livid with the board's decision approving the expansion and believed proper weight was not given to evidence they brought before the board, including hours of videotape documenting apparently dangerous traffic conditions in front of the Playhouse.
"It's not even a compromise like in 1997," she said. "[The board] gave [Petracca] everything he wanted on a silver platter. What makes the board's decision even more frustrating is that it originally rejected putting a seven-screen movie theater in the middle of a residential community in 1997, recognizing congestion, parking and traffic safety concerns. Many of the current members were on the board then. Nothing has changed to make them justify this decision now. Our evidence was totally ignored."
A hearing over the lawsuit is scheduled for Wednesday, Nov. 21 at Nassau County Supreme Court.
