By decision dated March 13, 2014, the Appellate Division, Second Department, upheld a trial court decision in Harbor Park Realty, LLC v. Modelewski, affirming certain relief granted by the Town of Huntington Zoning Board of Appeals (“ZBA”) to 1033 Fort Salonga, LLC, et al.  (hereinafter “1033”)  for a depth extension into a residential zone and parking, steep slope and retaining wall variances.  In upholding said relief and dismissing an Article 78 proceeding filed by  Harbor Park Realty, LLC, (“Harbor Park”), a nearby property owner, the Appellate Division  paved the way for 1033 to construct a commercial building to serve in relocating 1033’s Wine and Spirit’s business from Harbor Park’s Norwood shopping center to a nearby property.  Relocation of the Wine and Spirit’s store resulted in Harbor Park’s loss of its anchor tenant.

At first blush, the Appellate Division decision in Harbor Park resembles most Article 78 proceeding decisions involving the question of whether the decision of the ZBA was in keeping with the balancing test set forth in  Town Law 267-b(3)(b) and insuring that the decision of the ZBA was not illegal, arbitrary and capricious or an abuse of discretion.  In upholding the trial court decision, the Appellate Division stated that the “ZBA engaged in the balancing test prescribed by Town Law 267-b(3)(b), and properly found that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood.”  See, Matter of Pecoraro v. Board of Appeals of Town of Hempstead; Matter of Daneri v. Zoning Board of Appeals of the Town of Southold.  

However, upon review of several newly reported Appellate Division decisions, a second decision dated April 30, 2014, Harbor Park Realty, LLC v. Mandelik, caught my eye.  In Mandelik, the same property dispute was reviewed again. However, in Mandelik, petitioner Harbor Park sought review of site plan approval granted to 1033 by the Huntington Planning Board.  In upholding the site plan approval, the Appellate Division stated “[a] local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board’s actions was illegal, arbitrary and capricious, or an abuse of discretion. See, Matter of Hejna v. Planning Board of Village of Amityville.  Finding that the decision of the “[P]lanning Board of the Town of Huntington had a rational basis, and was not illegal, arbitrary and capricious, or an abuse of discretion” the appeal was dismissed.

In light of the legal challenge to the decisions of both the ZBA and the Planning Board, I thought it worthy to give the trial court decision a read.  This is where the sour grapes ripened.  Harbor Park is the owner of a shopping center wherein 1033’s Wine and Spirits store is the anchor tenant.  1033 purchased an adjacent property and sought to relocate the Wine and Spirits business to the newly developed site.   The ZBA and the trial court both noted that Harbor Park benefitted from the same depth extension that 1033 sought.  Fairness and equity dictated that Harbor Park could not object to 1033’s request for the same relief that Harbor Park received.  Further, the trial court noted that “[t]he petitioner’s arguments directed at the lot and size variance, parking issues and the steep slope variance appear really concerned not with claims of arbitrariness or capricious conduct by the ZBA (especially in light of the steep slope issues and depth extension at the other commercial establishments in the area) but rather its own economic interest because a valued and ‘anchor’ tenant is leaving to occupy the adjoining property.”

When the facts of a land use case involve parties who enjoy a business relationship, joint economic interest or even business competition, a land use practitioner should be  prepared for a court’s potential skepticism regarding a land use challenge.  If it appears to the Court that the objector is most likely looking to protect its economic interest instead of challenge an arbitrary land use decision, it is unlikely that the objector will prevail.  As noted in Genovese Drug Stores, Inc. v. Town Board of the Town of Islip, wherein the Court dismissed an Article 78 proceeding commenced by Genovese when CVS sought to located across the street, the Court stated that “the only legitimate objection to the determination of the Board’s (site plan approval) by Genovese would be increased competition as a result of the construction of a CVS pharmacy, and zoning laws do not exist to insure limited business competition.”