The Appellate Division of the Second Judicial Department yesterday overturned a New York State Supreme Court October 2012 decision that denied 7-Eleven’s plan to build a storefront at 400 East Jericho Tpke. in Mineola. According to the April 29 decision, the board did not hire an expert to rebut the Slurpee giant’s testimony. Furthermore, the order said the board’s conclusion “was arbitrary and capricious.”
The appellate division says the plan should be put back before the village board for approval. Mineola could appeal to the New York State Court of Appeals to fight the reversal, but nothing has been confirmed at this time.
Garden City-based Amato Law Group represents 7-Eleven. They did not immediately return calls for comment.
“We’re going to get a consensus and decide if we’re going to appeal it or grant it with restrictions,” Mayor Scott Strauss said. “We haven’t decided yet.”
In March 2012, the village board at the time argued the plan’s denial based on possible traffic hazards, insufficient delivery space and impact to Jay Court residents. This preceded a November 2011 public hearing, where Jay Court homeowners were out in full force to oppose the project. In October 2012, 7-Eleven lost a battle in court attempting to get the village board ruling overturned.
The 2015 decision suggests the village board opposed the plan “based on their belief that the convenience store’s clientele would be unsavory, and that the presence of the proposed store would exacerbate existing traffic congestion. No expert evidence was provided in opposition to the petitioners’ expert evidence.”
Mineola village attorney John Gibbons argues law leaves these decisions up to local boards and that expert rebuttal is not required by law.
“The law is basically to the affect that land use decisions are to be made by the common-sense judgment of the citizens that sit on local municipal boards,” Gibbons said. “They are allowed to listen to an applicant’s expert, who is by definition a paid advocate, consider their data and conclusions and draw their own conclusions supplementing that data with their own personal experiences having lived in the locality. This decision is a bit surprising to me.”
Strauss said the board planned to discuss the matter Wednesday.
“I don’t think it’s right,” Strauss said. “How can people sitting in a Brooklyn courthouse decide what Mineola should look like and do? The board of trustees and village residents know better than they would in what fits in our town.
“We think at some point this needs to be addressed because how can they tell us we have to hire an expert if we’re not required to hire one by law,” Strauss said.
