Rivkin Radler wins major victory against Town of Riverhead and Wal-Mart

Rivkin Radler's real estate zoning and land use practice group secured a major victory on behalf of Riverhead PGC against the Town of Riverhead and Wal-Mart, challenging the town board's approval of a Wal-Mart application, as well as the provisions of the Riverhead code. The case addressed a growing trend whereby town boards have attempted to divest their zoning boards of variance jurisdiction and have transferred such power to themselves. Riverhead PGC owns a shopping center located on County Rte. 58 (CR 58) in Riverhead known as "Riverhead Plaza." CR 58 is the main thoroughfare of the North Fork and maintains many commercial uses, including the Tanger Outlet Mall Complex. Traffic problems on CR 58 are severe and received considerable attention in the Riverhead masterplan, recognizing that the bottleneck at the gateway to CR 58 at the end of the Long Island Expressway was already causing motorists to divert onto secondary streets to avoid the traffic. Headriver LLC owns property west of Riverhead PGC. They agreed to lease their property to Wal-Mart for the development of a Wal-Mart Supercenter. The construction would have resulted in the largest retail user in the entire east end and would have served to dramatically compound the existing traffic problems on CR 58. Headriver required multiple variances, which were more than substantial, as well as site plan approval. The project proposed using 41 Transferred Development Rights Credits (TDRs), the largest allocation of such credits for a single project in any existing TDR program. Such equates to approximately 60,000 s/f of retail space being placed on the property. The Town Board approved everything Headriver sought. Riverhead PGC instituted a hybrid action (an Article 78 proceeding/declaratory judgment action), in the Supreme Court, Suffolk County challenging the Town Board approval as well as the provisions of the Riverhead Code, alleging that the town board did not have the authority or jurisdiction to hear and decide variances. Separation of powers exists on the local as well as the state and national levels. It is an integral part of our system of democracy. Every town and village is required to have a zoning board of appeals. The powers of the zoning boards are established in state law. Further, town board members are prohibited from sitting on zoning boards. Allocating jurisdiction among local boards serves to provide checks and balances which protect the property owners and the public from municipal authorities overstepping their bounds. Recently, however, there has been a trend whereby some towns have tried to divest their zoning boards of the exclusive authority to hear variances and unilaterally transfer such power to themselves. When local town boards attempt to take to themselves authority the State has given to separate and independent zoning boards our system of checks and balances is compromised. The rule is not limited to the Town of Riverhead. In rendering his decision, Justice Thomas Whelan used the basic principals of government to strike down the provisions of the Riverhead Code by which the Riverhead town board attempted to transfer variance authority from the zoning board of appeals to itself. Justice Whelan also struck down the provisions of the Riverhead Code which attempted to map sending and receiving districts without complying with the procedure spelled out in the Riverhead Code. The rule has now been enunciated to all Town and Village Boards that the checks and balances of local branches of government are not to be violated and that variance authority rests solely and squarely with zoning boards of appeals. The rule has also been enunciated that code provisions may not be side stepped, but rather, procedural rules must be followed by all branches of government. Riverhead PGC was represented by Rivkin Radler partner, Joseph Buzzell and associates, Nicole Blanda and Courtney Blakeslee.