On March 20, 2008, Sprawl-Busters reported that homeowners in Rocky Point, Long Island, one of the 51 hamlets of Brookhaven, New York, have been fighting big box stores for 8 years. But a developer was trying to pull a bait and switch between a Lowe’s project — which got mired in litigation — and a Wal-Mart supercenter. Brookhaven already has six Wal-Marts within 20 miles — but none of them are supercenters. Brookhaven has 323.5 square miles or area, and is the third largest Town in New York State. It’s located in Central Suffolk County, Long Island. Rocky Point is located on the northern edge of Brookhaven, on the banks of Long Island Sound East. The north and south shores of Brookhaven are tall timber areas, covered with oak and maple. The middle section is called the “Pine Barrens,” with stands of scrub oak and scrub pine — an important area for replenishing the town’s water supply. For years, this hamlet did battle against a Lowe’s Home Improvement store. A developer called Lerner-Heidenberg Properties, from New Jersey, tried to squeeze in a 169,000 s.f. Lowe’s on Route 25A on roughly 18 acres of land. For many years, the site was used as a drive-in movie theater, but it has been shut down for years, and represents one of the larger pieces of open land in Brookhaven. But instead of building a store, Lerner-Heidenberg ended up generating a lawsuit, which went all the way to the State Supreme Court. Lerner-Heidenberg first proposed their Lowe’s project in 2000, but when the town rezoned the land, the developer filed a lawsuit in 2002, charging that Brookhaven had intentionally put off voting on the site plan so that the land could be rezoned. The State Supreme Court ruled that Brookhaven acted legally — but the developer pressed his case onward to the Appellate Court, and in February of 2007, that court ruled that there must be a trial in the case. This meant that Brookhaven had to spend a considerable amount of time and money just to defend its rezoning. Knowing this, Lerner-Heidenberg approached the town with a settlement idea: drop the 169,000 s.f. Lowe’s, and replace it with a 135,000 s.f. Wal-Mart. The developer promised that if the town accepted the Wal-Mart deal, he would drop their lawsuit. Wal-Mart, per usual, denied that it had any plans for a Rocky Point store, and said there was “no announced store” at this time, but left the door open by saying, “that could change down the road.” But local residents don’t want a Wal-Mart here, or, down the road. Drew Martin, the president of the Rocky Point Civic Association, which is against the plan, depicted Wal-Mart as a “market killer” for small businesses in the Rocky Point trade area. “We’re not opposed to something that generates revenue for our school district, but it’s got to be something responsible,” Martin told Newsday. The town councilwoman who represents Rocky Point, came to the anti-Wal-Mart rally. “What do you want,” the newspaper quoted her as saying, “a store the size of four football fields and everything else boarded up with plywood? Is that the trade-off? It’s not one my community is willing to take.” Three months later, the Times Beacon Record reports this week that the site of the former Rocky Point Driving Range is still empty, and the legal dispute between Brookhaven and land owner Steven Lerner has gone nowhere. No court date has been set for the case. The Rocky Point Civic Association continues to maintain that a zoning change to pave the way for a Wal-Mart at supercenter “will never happen, and that his association will fight vigorously against the Wal-Mart plan,” the newspaper says. The Association said it would “pound that drum” until the developer withdraws his plans. The group has held a rally at the site of the defunct driving range, which was attended by a current Brookhaven Town Board member.
Developers rely on litigation to achieve what they cannot by regulation. Even when developers know that the community does not want them, and has rezoned property to prevent them from sprawling over their town, they continue to push, and use the threat of costly litigation as a blunt instrument. In this case, the town of Brookhaven has already prevailed in Supreme Court, and is likely to prevail in a court trial. But it will cost the town a lot of money and staff time. The developer is hoping that by upping the ante, they can wear the town down, and make them put their pocketbook ahead of good land use planning. Readers are urged to email Brookhaven’s Supervisor, Brian X. Foley, at http://www.brookhaven.org/BrianXFoley/tabid/197/Default.aspx, with the following message: “Supervisor Foley, I urge you to continue to oppose the plan of Lerner-Heidenberg, to switch a Lowe’s for a Wal-Mart supercenter. This is like choosing the evil of two lessers. Rocky Point doesn’t need either store. You already have six Wal-Marts within 20 miles of Brookhaven. As the Vice-Chair of the town’s Economic Development & Education Committee, you have worked hard to promote downtown communities. You also led the way to use Greenways Fund to preserve wetlands and stream corridors. Brookhaven rezoned the land Lerner wanted. They sued you, and you won in Supreme Court. Stick with your case, and stand by the residents of Rocky Point, who don’t want a last minute “settlement” to force them to live with a Wal-Mart store that is still way out of scale. Work with the Town Council to reject this “offer.”