… The First Casualty

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By:  Progress for Westhampton Beach

Lou Cassara is the owner of the Barth’s Pharmacies in East Moriches, Westhampton Beach and East Quogue  (The Riverhead Barth’s Drug Store was purchased from Barry Barth by  Bhaskar Gunjupali of Manorville this past December of 2015) 

Mr. Cassara opposes the application before the trustees to permit the owner of the old Sunset Avenue bowling alley to have one store of 10,000 square feet in the 20,000 square foot building.  There has been no secret, the proposed tenant for this space is CVS.  The owner of the bowling alley has the right to do this, and that is probably why the identity of the tenant has been plainly disclosed to all.

In what amounts to a little bit of a turf war Mr. Cassara said:

“If anyone hasn’t read that a big-box store in a community [with a] population [of] less than 5,000 will not have an impact on the community, then excuse me and so be it—welcome to CVS,”


The Board of Trustees that adopted the zoning law providing for up to 10,000 square feet of commercial space in the B-1 Zone was protecting against big-box stores.  This store is not even close to being a big-box store.  Walmart in Riverhead is more than 169,000 square ft.; and Home Depot in Riverhead is over 125,000 square feet.  One definition of a big-box retailer is a store with more than 50,000 square feet.

So “No, there is no big-box store coming to the village.”  Mr. Cassara’s reference to big-box retailers was just part of a business turf war.

As Aeschylus, the Greek playwright, said “In war the first casualty is truth.”  This is not a criticism of Mr. Cassara, or any of the competing merchants — all is fair.

But the second casualty of that little turf battle should not be the respect due to the 2007 Board of Trustees for our village. That Board did a good job and placed the upper limit at 10,000 square feet.  That is a legally defensible limitation for businesses in the B-1 district.  The special exception process the 2007 Board provided allows the current Board to put reasonable conditions as a requirement of approval.  But once the applicant satisfies the legally permitted elements for the special exception — the applicant has a right to approval from the Board.

We will still shop at Barth’s on Sunset Avenue, but we respect the work of the Board of Trustees past and present, and understand there are legal restrictions that prevent government from stifling competition.

January 20, 2016

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By:  Progress for Westhampton Beach

A special meeting was convened to continue and complete two public hearings and hold a third.  The first hearing was on Tonino’s application for a special exception to allow for additional seating. The hearing was closed without any further comment.

The second hearing was a continuation and completion on the hearing on the special exception to permit the owner of the old Sunset Avenue bowling alley to provide commercial space of 7,000 additional square feet for a commercial tenant above the 3,000 square foot limit.  See CVS Posts, Parts I to V.  There was opposition predicated upon the proposed use of this commercial space for CVS, but the village attorney attempted to make it clear, that is not a permissible consideration and that if the requirements under the code are met, then the board of trustees is required to grant the exception.

The third hearing held pertained to changes to the village code as pertains to peddling and soliciting.

The work session is at times a cauldron for ideas to be stirred, and this evening fit the bill.  Trustee Rob Rubio asked for a representative from Chargepoint  to make a presentation to the board.  Chargepoint provides charging stations for electric cars.  See list of electric cars.  The biggest selling point was that having charging stations available would draw drivers  into the village, to recharge and shop / dine while topping off the charge required.  This selling point has evident validity during the early stages of an automotive transition to electric cars.  The wager on such a transition taking place is the bet being made by Chargepoint and any commercial establishment that puts up a charging station.  Hmmm, sounds like something for a Business Improvement District (BID).  See e.g. NYC Business Improvement Districts.  

Another idea advanced was rental stations for bicycles like those corporately sponsored in NYC by Citibank.  Trustee Brian Tymann has already begun speaking with Bart and Toni-Jo Birk at Bike & Kite, with an eye towards employing their expertise in management and bicycle maintenance for such a program.  The idea is in its infancy and requires more investigation and discussion.

The village is also entertaining the idea of bringing the beach food concession in-house.  The proposal was favorably received, and the details will have to be worked out in the coming months for the 2016 summer season.

CVS, Part V of V

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By:  Progress for Westhampton Beach

Continued from CVS, Part IV of V 


In 1970 the U.S. Supreme Court decided Pike v. Bruce Church, Inc.

Arizona had enacted a law that regulated the packaging of Arizona cantaloupe.  Arizona was of the opinion that its cantaloupe were the most delicious and succulent.  The Supreme Court did not pass upon that question, but it did hold that:

Where a statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. “

The great “Unless” is that local government can engage in “even-handed” regulation, not favoring local or disfavoring interstate commerce, and it may still be violating the Commerce Clause.

Now, about CVS, square footage restrictions, zoning, and how these restrictions fare under judicial scrutiny:

The Dormant Commerce Clause and local zoning law collided on the purple island in the Florida Keys — Islamorada 1)Islamorada is also the setting for a Netflix Original Series: Bloodline which has been renewed for a second season.Islamorada, like many communities, was concerned with the incursion of chain stores.  In 2002 the Village of Islamorada had the foresight to adopt a zoning ordinance that prohibited “formula restaurants” which, among other things, limited the size of retail establishments.

Starbucks-free-to-useJoe Cachia ran a floral shop in the Village of Islamorada but wanted to sell this property to Starbucks.  The local ordinance interfered with Joe’s plan to sell and Joe made a federal case of it.  The Federal District Court ruled against Joe and agreed with the village.

However, the Court of Appeals for the Eleventh Circuit said “not so fast” there are questions of fact that have not been addressed here.  The Eleventh Circuit Court of Appeals sent the case back for a hearing.

Before having a  hearing the village of Islamorada settled the case.  Mocha Frappuccinos for all the latte lappers, make that a double for Joe Cachia.

If you think the village of Islamorada settled too quickly you should know that the Eleventh Circuit Court of Appeals had hit the village with a one-two punch on September 8, 2008 when it issued a second opinion that same day in favor of Walgreens in which it determined that the village ordinance did violate the Commerce Clause and no hearing would be required.

In our village the opposition theme to the CVS application has understandably been “Do we need another drug store?”  This complaint would find traction in a nation with a command economy, it has no legal support in a market economy that relies on competition to provide the best service / product at the best price.

Residents can vote with their feet and shop where they like; but they can not impress village government into the service of their personal predilections, insist that the special exception be denied, and expect success.  See also This is just wrong…

The Board of Trustees has to stick to its knitting.  It should use the special exception law to impose reasonable restrictions that will protect the the health, safety and welfare of the neighbors behind the old bowling alley who live on Potunk and moderate the visual appearance of this larger store.  The Planning Board and the Village Planner have already been working on these conditions.  The loading dock is to be on the interior of the building reducing noise, and the CVS will only occupy part of the old bowling alley and will leave room for other stores along Sunset Avenue and on the north side of the building minimizing the visual impact.  These conditions have already been accepted by CVS.

If the Board of Trustees denies the application or imposes unreasonable conditions the village we will be headed down the rabbit hole to a tea party held in the Federal District Court for the Eastern District of New York.

Even if CVS were to only bring its legal challenge in a New York State court Article 78 proceeding,2)it is hard to imagine CVS would forego federal court where its case could be litigated under 42 USC § 1983, to obtain damages, and attorneys’ fees under 42 USC § 1988. CVS enjoys a presumption that its use of the premises as a pharmacy is in harmony with the local zoning.  See Matter of 7-11 v. Village of Mineola.  

Alice Tea Party

References   [ + ]

1. Islamorada is also the setting for a Netflix Original Series: Bloodline which has been renewed for a second season.
2. it is hard to imagine CVS would forego federal court where its case could be litigated under 42 USC § 1983, to obtain damages, and attorneys’ fees under 42 USC § 1988.