The Law

Size Matters by Ron Davis Expansion plans for a New York shopping center have been thwarted by local authorities who obviously believe that size matters. The shopping center, located in North Hempstead, on Long Island, is owned by Greencove Associates, LLC. And the expansion plans call for a new 10,000-square-foot structure in the southwest corner of the center’s 5.26-acre property. But those plans hit a snag when the owner submitted them to the Town Board of North Hempstead. That’s because of a restriction imposed on the center’s owner just prior to the center’s construction in 1959. At that time, local authorities of North Hempstead required a “landscaped buffer” where the shopping center property abuts an adjacent road. The authorities apparently believed that such a buffer is needed to afford privacy for a residential neighborhood located just across that road. As proposed, the new structure would encroach on the existing landscaped buffer. Instead of the buffer measuring, on average, 22 feet in width, local authorities estimated that it would at one point measure only four or five feet. County planning authorities therefore ordered a reduction in the size of the planned shopping center structure. Instead of 10,000 square feet, the authorities ordered a modification so that the structure would contain only 6,800 square feet. They explained that such a modification would “enable the structure to better fit into the irregular-shaped site and be relocated further from the property line while maintaining the existing buffer….” After a public hearing, the Town Board approved the site plan that limited the center’s owner to the 6,800-square-foot building. The center’s owner responded with legal action to have the new site plan stricken and annulled. The local planning code, however, empowers the Town Board to “approve, approve with modifications, or disapprove a site plan within the Board’s jurisdiction.” In doing so, the Board must consider the “overall impact on the neighborhood, including compatibility of design considerations and adequacy of screening from residential properties.” A New York state court therefore ruled in favor of the Town Board, explaining, “The contested condition was a reasonable means of assuring that the existing landscaped buffer, which was designed to screen the adjacent residential neighborhood from the effects of the shopping center, would be preserved…. Contrary to the contentions [of the center’s owner] the contested condition was within the Town Board’s power to impose and was not affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational.” (Greencove Associates, LLC v. Town Board of the Town of North Hempstead, 2011 WL 4389752 [N.Y.A.D. 2 Dept.]) Decision: October 2011 Published: October 2011