In June 2001, the Town of Oyster Bay Board voted 6-1 to reject an application submitted by the Taubman Company to build an 860,000 square foot mall on the 39-acre Cerro Wire factory site in Syosset. This past Monday, State Supreme Court Justice James M. Catterson ruled that the town did not base its decision on substantial evidence and annulled the decision made by the town board.

This issue was brought to court when Taubman's attorney's challenged the board's decision saying that the board's reasons for denying the application were not supported by substantial evidence.

In his ruling Catterson annulled the board's decision and returned the proposal to the town for further consideration. Catterson concluded that in several instances the town's findings were "arbitrary and capricious and not based on substantial evidence." According to Catterson's written decision, "It is the obligation of this Court to review and analyze the town board's decision in conjunction with the record in this case to determine whether its determination is arbitrary and/or capricious, or based upon substantial evidence. This review necessarily involved deciding whether the town board took a sufficient 'hard look' at the project and set forth a reasoned elaboration for its determination."

"We were compelled to file this lawsuit because the town board ignored its own zoning laws, which clearly provide that our client's project is an appropriate and permitted use on this dormant 39 acre industrial property," said John Harras of Morton Weber and Associates, the attorneys representing the developers. "By annulling the town board's decision, the court reasserted the rule of law and in doing so set the stage for economic growth, new investment and the elimination of a rusting symbol of industrial decay."

Town of Oyster Bay Supervisor John Venditto is disappointed and troubled by the judge's recent decision. "We have been working carefully and thoroughly with this matter for approximately four years and we felt very strongly that we have dotted every 'I' and crossed every 'T', given anyone interested a full and fair opportunity to be heard and sat patiently and listened carefully and thoroughly to all of the arguments that have been advanced," he said. "Prior to the decision, we fully anticipated that a court of law would appreciate what has been done and would have simply affirmed that the town did the right thing here. We find it troubling that that did not happen and what did happen is that we are in a situation that the court has substituted its judgment for the judgment of the Oyster Bay Town Board."

Venditto respects the fact that the judge was confronted with a lot of information on a very involved subject just as he and the town board were. "There is this sense in the town that our authority has been usurped and it follows that our residents have been disenfranchised because our residents are the ones who elected this town board to make these very decisions," said Venditto. "Instead, we have a judge substituting his judgment for ours. That is troubling and something that we cannot accept."

Venditto has authorized the town's council to appeal the most recent decision. "The bottom line is that we disagree," said Venditto. "We feel [Judge Catterson] went way too far and as a result the decision has been made to take an appeal from the court's decision and to try and restore some order in the case. We need the appellate division to step in and let everyone understand the rules here and explain that a court of law should not impose its judgment."

According to Venditto, on July 1, the New York State Court of Appeals rendered four decisions and in each of those four decisions, it said a judge should not do what Judge Catterson did, overturning a town board's decision.

The order from Judge Catterson is for the Town of Oyster Bay Board to reconsider the application under certain guidelines. "He wants us to rethink it along the lines that he thinks. Normally you would not appeal now and you would wait until you get a final decision. We are going to ask the higher court for its permission to let us appeal now because something has happened in the case that it is in the interest of the higher court to fix now before it gets out of hand. We are going to a panel of judges now.

"We respect the judge's decision and if he wants us to reconsider it we will. It is not likely that we would change our opinion. We lived with this case. We, the entire town, governmentally speaking, went the extra mile to see to it that everyone had a full and fair opportunity to be heard. We listened very carefully and patiently. We want to try and correct the decision and restore order."

According to Morton Weber, an attorney representing the Taubman Company, this recent decision is a major victory for his client. "Here come the bulldozers - the mall is coming," he said in a recent interview. "Our goal is to start construction and to build an 860,000 square foot mall. We are optimistic that the town is going to be in a position that they are going to have to approve 860,000 square feet."

The many groups opposed to this mall are determined to continue the battle and are not going away. "We are disappointed, but my recommendation is going to be that we take whatever steps necessary to appeal it," said Howard Avrutine, co-council for those opposed to the mall. "This is another milestone in the process and it is far from over. We are not going away and we are not going to stop the battle."