Donald Trump watches the Philadelphia Phillies play against the New...

Donald Trump watches the Philadelphia Phillies play against the New York Mets at CitiField. (Aug. 13, 2010) Credit: Christopher Pasatieri

Developer Donald Trump has won the latest round in the protracted litigation with the state over his stalled catering hall-restaurant at Jones Beach.

In a split decision released Thursday, an appellate court affirmed a lower court ruling that a Department of State review board should have granted Trump and partner Steve Carl a variance to build a basement in a flood zone.

The court majority said the review board "misapprehended or disregarded the facts and was overly speculative," and ordered it to issue the variance "subject to any reasonable condition it deems appropriate."

The state, which appealed the initial Supreme Court victory by Trump to the Appellate Division, could ask the state Court of Appeals to hear the case. But state officials Thursday said they were reviewing the decision and had no comment.

"It's a major league victory," said Trump attorney Steven Schlesinger. "The decision is so strong that I think there's no shot" that the Court of Appeals would consider an appeal.

Trump said "this is even better than the lower court ruling because they said they have to issue the variance immediately" rather than just overturning the initial denial.

Ronald J. Rosenberg, an attorney fighting the project, said the dissenting opinion in the appellate ruling "accurately sets forth the correct law and we would hope that the attorney general would appeal this."

Rosenberg said state law set up the state department administrative process so decisions can be made there, not in the courts.

"The court is not allowed to substitute its judgment just because it doesn't agree with the decision," he said. The judges can only intervene, he said, if the decision was arbitrary and capricious.

Trump said in an interview that even if he gets the basement variance he would not build until another lawsuit seeking millions in damages from the state for delays in building the project is resolved and the state renegotiated and extended his lease to take those delays into account.

"This building could have been built already for two years and employing hundreds of people and generating revenue that the state sorely needs," he said. "Instead you have an empty hole on the boardwalk of Jones Beach."

Trump is appealing two adverse rulings by a state Court of Claims judge in his lawsuit, which seeks $500 million in damages for the delays.

There is a third lawsuit over whether the state can charge Trump rent for the site before construction starts. Trump won the first round in that case, but the state is appealing.Meanwhile, the boardwalk site has sat empty for more than six years.

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