Newsletters

SWC NEWSLETTERS

VOL. V, NO. 2 FALL, 2004

Welcome to the Fall, 2004 Edition of “Report from Counsel,” a Newsletter for the Firm’s clients and the other professionals who consult with the Firm, updating them on our practice as well as important new developments in the law.

NEW DEVELOPMENTS AT THE FIRM

The Firm is pleased to welcome our new associate, Eric G. Silverman. Eric joined the Firm during the summer and will concentrate his practice in the areas of real estate law and transactions and commercial litigation. His expertise in these areas will provide our clients with sophisticated legal knowledge and a high level of service. Eric was previously associated with a prominent Long Island law firm where he focused on real estate matters, including representing banking institutions in residential sales, commercial sales and refinancing, as well as residential and commercial real estate contracts and leases.

Eric is an important addition to our Firm and we know you join us in welcoming him to the practice.

We invite you to visit the Firm’s redesigned website, www.sahnwardbaker.com, for the latest news and developments in our practice. The new, contemporary design will allow us to provide you with more information and improve our ability to serve our clients.

MATTERS RECENTLY CONCLUDED BY THE FIRM

The Firm successfully represented APW Supermarkets, Inc., a subsidiary ofthe Great Atlantic & Pacific Tea Co. Inc., in an application to the Town of Hempstead for a change of zone approval in order to undertake the expansion and modernization of the Waldbaum’s Supermarket, located in the Baldwin Harbor Shopping Center at Atlantic Avenue and Grand Boulevard in Baldwin. To permit the project to go forward, the Firm had to gain permission to rezone two properties that adjoin the shopping center. The change of zone application was complex, involving plans to incorporate the rezoned property into the overall shopping center site. The expansion will allow Waldbaum’s to increase the store size from approximately 31,000 square feet to 44,000 square feet. The overall project has been designed to improve the appearance and functionality of the entire shopping center. Changes to the shopping center will include a new front entrance and facade for the Waldbaum’s store, increased parking, improved lighting and landscaping and a new, more modern color scheme.

The New York Times reported on this significant project in an article highlighting the renovation of several community based shopping centers.

The Firm negotiated the purchase of the property and business of a well-established Suffolk County day camp, as well as financing for capital improvements. The sale, which included approximately 11 acres of land in the West Hills section of Melville as well as the camp business and all of its assets, was the first transfer of a Long Island day camp property in at least ten years. The camp was sold by its long-term owners to a group of several individuals, including a long-term director of the camp. Sahn Ward & Baker handled all aspects of the transaction, including institutional financing acquisition. The Firm will continue its representation as planned capital improvements will require new land use and zoning approvals.

The Firm successfully obtained siteplan approvals for two adjacent commercial properties located on Franklin Avenue in Garden City. For the lessee/franchisee of a Quiznos Sub restaurant, an application for site plan approval was made before the Village Planning Commission and the Village Board of Trustees. The Firm also assisted with an application for signage for the front and back of the building. For the second property, site plan approval was required to renovate and add new floor area to a mixed use retail and office building.

NEW AND ONGOING MATTERS BEING HANDLED BY THE FIRM

The Firm has been retained by The Great Atlantic and Pacific Tea Co., Inc. in complex litigation concerning the re-zoning of its Waldbaum’s Supermarket in Great Neck. The litigation challenges the re-zoning of the parcel located in Great Neck from commercial and industrial use to residential use. The issues in the litigation are particularly relevant since there is a growing trend for municipalities to exercize zoning and eminent domain powers as part of an“economic development” policy to replace existing property uses with new uses that the municipalities deem more appropriate or more important for a geographic area. We will report further on this trend in upcoming Newsletters.

The Firm continues to expand the number of local franchisees it represents in the food sector, having obtained approvals for a MaggieMoo’s ice cream eatery, a Charlie Brown’s Steakhouse in Commack and a Famous Dave’s BBQ in Smithtown.

The Firm has continued its representation of developers of a subdivision in Mt. Sinai featuring luxury home sites, one of which will incorporate a historic home dating back to the 1880’s that was located on the waterfront property when it was sold. The Firm’s continuing efforts involve securing state, county and local approvals and permits to construct the new homes and the related public improvements of the subdivision.

APPELLATE COURT TRENDS
IN LAND USE LITIGATION

By: Jon A. Ward, Esq.

The Firm continues to monitor trends in the appellate courts regarding land-use matters. In 2004, the New York Court of Appeals ruled that property owners who have been arbitrarily denied valuable land-use permits by local governments cannot recover money damages from local governments under federal civil rights statutes for violations of their constitutional rights unless they can also show that the denial was arbitrary and coupled with “egregious” or “evil” conduct. This is an almost impossibly high standard to meet. Thus, the Court of Appeals has all but closed the door on such claims by private property owners.

This decision follows on the heels of several decisions in 2002 by the Court of Appeals in which the Court admonished the lower courts to be deferential when reviewing the propriety of land-use determinations by local governments and not to substitute their judgments for those of the local land-use boards simply because they would have reached a different conclusion on the facts of the case.

Given these rulings, a pro-active approach to zoning and land-use approvals at the local level is imperative. Applicants and their counsel should meet with local officials and civics groups before their applications are submitted, and if possible and appropriate, before property is purchased, to test the waters and identify problem areas. Pre-application due diligence, thorough research and preparation, and community outreach will often make the difference between a project that moves through the review process smoothly and one that faces major complications and extensive delays. Moreover, in making any land use application, owners must present compelling and comprehensive evidence in support of the application in order to make a convincing record and to be persuasive at the local level.

OUT AND ABOUT

For the second year in a row, Michael Sahn was included in a Long Island Business News special feature, Who’s Who in Real Estate Law. He was asked about trends in land use issues on Long Island and observed, “We have to come to grips with change and embrace it so we not just preserve what we have, but improve upon it in the future.”

Daniel Baker was featured in an article in Long Island Business News that took a close look at the challenges facing multi-unit franchise restaurants doing business on Long Island. The Firm represents several local franchise owners, including Panera Bread, Baja Fresh Mexican Grill, Charlie Brown’s Steak House, Famous Dave’s BBQ, Cold Stone Creamery, Trader Joe’s and Quiznos Subs, along with Rita’s Water Ices and several major petroleum franchise owners. Dan emphasized that Long Island’s population density, along with a high level of discretionary income, makes it very attractive for franchise restaurants–and worth the extra patience that is occasionally required in obtaining land use permits.

Karen Roth has been named News Editor at The Nassau Lawyer, the monthly newspaper published by the Nassau County Bar Association. Karen will be responsible for ensuring that Nassau County bar members are kept up to date with critical court decisions, legal news and trends in the law. A news item about Karen appeared in the New York Law Journal.

As mentioned earlier, Michael Sahn was quoted in an article in The New York Times in August that profiled three different community based shopping centers on Long Island that will undergo face-lifts, starting with the Baldwin Harbor Waldbaum’s shopping center represented by the Firm. Michael noted that the expansion will allow the Baldwin Waldbaum’s to provide additional goods and services that consumers expect in a modern shopping center.

The Firm has published a primer on residential real estate transactions. The primer covers basic elements of a residential sale. Following issues will explore title insurance and the closing process, two areas that can be somewhat arcane to the layperson. If you would like a copy, please call our office and we will be pleased to send one to you.

Michael Sahn will be a member of a distinguished panel of attorneys teaching an accredited Continuing Legal Education course on Commercial Real Estate Transactions and Title Issues in New York, set for December 13, 2004. The class will cover negotiations and drafting purchase agreements, 1031 exchanges and current issues in zoning and land use.

UP CLOSE AND PERSONAL

The Baker family is proud to announce the arrival of Samantha Rose. Siblings Tyler, Matthew and Katherine are very excited about having a baby sister, and we know you share our happiness for Dan and Natasha.

We are happy to introduce Marie Esposito, a legal assistant who is new to the Firm but has been in the legal field since 1987. Among the staff, Marie is already known as the best shopper in the office. She comes to the Firm with skills which are a valued addition to our staff. When not at work, Marie enjoys reading and spending time with her family.


SAHN WARD & BAKER, PLLC’s “Report from Counsel” is published with the intent to inform readers of recent developments at the Firm and in the law. It is not intended, nor should it be used, as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.

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