The last litigious stand of the Town of Oyster Bay to prevent the dismantling of the Westbury Drive-in, as well as the construction of a new United Artists multiplex and BJ's Warehouse store, collapsed on Tuesday, May 12 when the Albany Court of Appeals denied the town's appeal request, following a ruling by a lower court which favored the theater's owners.

The refusal to hear further arguments, a decision which the Court did not explain ¬ as is routine ¬ drew harsh criticism from several community residents who, although expecting this result, believe that the judges who reviewed the case do not comprehend how the Jericho community will be adversely affected by the crowd-drawing attractions proposed for the property on Cantiague Rock Road.

Drive-in property owners Howard Hogan Jr. and Eleanor Lerner have probably faced their last significant source of resistance, and now simply must collect the necessary permits to get the project underway.

"I am extremely disappointed with the decision, particularly since we have been fighting so long and hard, along with residents from the community," said Town Supervisor John Venditto. "It's been a matter that's been contested and litigated for six years now...The Court of Appeals is the highest court of the state...There is no other legal recourse."

"The courts didn't grasp the facts about the area," said a dejected Len Gutterman, board member and former president of the West Birchwood Civic Association. "I'm very unhappy with the justice system. The Nassau County Planning Commission voted this down, the Town Environmental Quality Review Commission voted this down and the town board voted this down. Everybody saw how bad the project was except for the courts." Gutterman was referring to conclusions made by agencies of the county and town that stated that such a project would be a detriment to the environment and traffic flow.

However, studies conducted by the drive-in owners' experts concluded that the local streets would not suffer from gridlock. In late 1997, the Supreme Court of New York sided with those conclusions, calling the town's refusal to grant a permit to rezone the drive-in property "capricious and arbitrary." The Appellate Division reviewed the case and upheld that decision.

The town's request for yet another appeal was based on the opinion that the previous courts did not properly weigh the evidence concerning traffic flow.

Gutterman also complained that the town may have been disadvantaged during the original hearing before the State Supreme Court because the proceedings took place in Brooklyn, not Nassau County, after a change in venue was ordered. "Many people ruling in this case are not from this area, and don't realize how crowded and congested the intersection is, especially during rush hours." Residents are particularly concerned with traffic conditions on Saturdays, when the multiplex would likely reach capacity. Jericho residents also worry that nearby Cantiague Elementary School would be adversely affected by the new businesses' community impact.

"As well as we thought we did with the case, the courts don't get it," Gutterman grumbled. "Other theaters are all on major roadways ¬ not secondary roads ¬ like Sunrise Highway, Route 110, Hempstead Turnpike, or Rockaway Turnpike. Brush Hollow Road is a secondary road."

Venditto agrees that the location doesn't fit the project, for many reasons. "All throughout there has been a general sense that this type of development in this area is not conducive with the quality of life. That is the sentiment the [town] board has described." But after a failed attempt to landmark the drive-in, and now a thorough trip through the state court system, it appears that the drive-in will finally fade to black.