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Rocky Point Drive-In site won't be a Lowe's, court rules

The marquee of the Rocky Point Drive In

The marquee of the Rocky Point Drive In along Route 25A where Lowe's had hoped to build a store. (Nov. 15, 2013) Credit: Joseph D. Sullivan

New York's highest court has upheld a decision that blocks a retail anchor from opening at the former Rocky Point Drive-In, ending a more than decadelong legal battle to bring a big-box store to the site.

The State Court of Appeals, in a 7-0 decision, affirmed the Town of Brookhaven's authority to change the zoning classification of the old drive-in from retail to recreational.

A New Jersey developer, who proposed building a Lowe's home improvement center on the site, had sued the town, alleging it had improperly denied its application to build a store on the property.

"It was the right result, and I'm thrilled," said attorney Maureen T. Liccione of Garden City-based Jaspan Schlesinger LLP, who represented the town in the case. "The Court of Appeals applied the law correctly."

Linda Margolin, who represented the developers, says her client still wants to build on the 17.6-acre site.

"We're very disappointed, and we're considering our options," said Margolin of Islandia-based Bracken Margolin Besunder LLP, which represented Rocky Point LP, an affiliate of New Jersey-based Lerner-Heidenberg Properties.

In 2000, the town tried to change the zoning of the property, before Lerner-Heidenberg applied to build a Lowe's, according to court documents.

More recently, the developer proposed bringing retail giant Target to the site.

Rocky Point LP, which acquired the property in 2002, filed the lawsuit in November 2002, seeking to force the town to consider the site plan application under zoning that permitted retail stores, which was in effect when it was filed.

The company argued that Brookhaven Town intentionally delayed the processing of the application and environmental review.

A lower court ruled for the developer, but a midlevel court reversed in the town's favor. The state's highest court upheld the midlevel ruling.

"Rocky Point fails to meet the threshold requirement that it was entitled to the requested land use permit under the law as it existed when it filed its application," Judge Jenny Rivera wrote for the court on Thursday.

"Rocky Point [LP] does not dispute -- and it cannot -- that it was out of compliance with the zoning classification in effect when it submitted the application."

Councilwoman Jane Bonner, who represents the community of Rocky Point, agreed with the decision.

"We want meaningful commercial recreation for this section of Brookhaven. Most residents felt that location was an inappropriate location for a big-box store," she said.

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