By:  Progress for Westhampton Beach

190 Years ago this month the Last of the Mohicans: A Narrative of 1757 by James Fenimore Cooper was published by Carey and Lea. Cooper was paid a $5,000 advance.  The story was set on present day Lake George, and the book takes its place on that long list of “the book is better than the movie.”  In this case make that movies (plural) with adaptations being produced in 1920, 1932, 1936, 1947, 1950, 1963, and most recently in 1992 starring Daniel Day-Lewis.  The Complete Leatherstocking Tales is comprised of 5 books including the Last of the Mohicans each worth reading just to smell the pine trees and the fresh air.

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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.

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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.

Joe 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.