A&P Takes Legal Action
The A&P presented the Town of East Hampton with some food for thought Friday: a nine-count Federal lawsuit claiming, among other charges, that the municipality's new superstore law violates the corporation's civil rights. The supermarket seeks to invalidate the law and asks for at least $50,000 in damages.
Filed in the U.S. District Court in Hauppauge, the lawsuit maintains that the legislation, which bans superstores and regulates supermarkets, is unconstitutional because it protects the "private economic interests" of the town's existing retail stores "from commercial competition . . . as opposed to [protecting] the interests of the public." Judge Leonard Wexler will hear the case.
"We expected this," said East Hampton Town Supervisor Cathy Lester, calling the charges "sheer nonsense." Ms. Lester said she was "disappointed" that the A&P took the matter to the Federal level and predicted that the town would ask for a summary judgment to dismiss the case.
Hired Counsel
In a special executive session Tuesday, the East Hampton Town Board appointed Richard Cahn of the Melville law firm of Cahn Wishod & Lamb to act as special counsel for the litigation.
Mr. Cahn, who was out of town this week, told The Star he had not as yet reviewed the papers. He said that he would look to see if the "facts fit a Federal claim."
"It's always a pleasure to do battle with Bill Esseks," he added, referring to the A&P's attorney, a partner in the Riverhead firm of Esseks, Hefter & Angel.
The Town Board passed its superstore legislation on Oct. 18. The law defines superstores as any retail operation exceeding 20,000 square feet and prohibits retail operations of more than 15,000 square feet and supermarkets of more than 25,000 square feet. It also limits supermarkets to central business zones and sets strict design standards for them.
Won't Process Application
The A&P in its suit claims the law is "beyond the scope of legislative powers delegated to the town . . . by the state."
The supermarket chain has proposed a 34,878-square-foot store on the former Stern's site, a four-acre property on Pantigo Road, East Hampton, zoned for neighborhood business. Last month, it moved its application a step forward by submitting a "scoping outline" to the East Hampton Planning Board, suggesting points to be covered in an environmental impact study.
In light of the superstore legislation, however, the Planning Board last week decided to tell the store its current application does not meet zoning standards and cannot be processed.
"Exclusionary Zoning"
In its suit, the A&P claims that the superstore law discriminates against and excludes people who "lack the economic means and/or physical means of transportation" either to buy food at other stores in town or to travel to stores outside the town big enough to offer "a wider variety of merchandise, at lower prices."
"The town has made errors in their procedure," said Mr. Esseks, "to attain a goal that cannot be reached under existing law." The legislation, he added, "fosters exclusionary zoning" by failing to consider the need for supermarkets larger than 25,000 square feet - and also violates the New York State General Business Law known as the Donnelly Act.
That law stipulates that every contract, agreement, or arrangement is "against public policy if it restrains "competition or the free exercise of any activity in the conduct of any business." The superstore law, the suit claims, "was adopted for an illegal and improper purpose of unlawfully interfering with the free exercise . . . of A&P's activities in the conduct of its business and trade."
Public Hearing
The town held a lengthy public hearing on the law on Sept. 16 that drew roughly 300 people. Of a parade of more than 30 speakers, only two spoke in favor of the market.
Nonetheless, this week Mr. Esseks characterized the superstore law as "an attempt by an aggressive, vocal group to modify commercial zoning as that group says it should exist in the town, i.e., to protect the existing village businesses and prohibit supermarkets as they exist in every community throughout the United States."
The suit claims that the town singles out retail stores in its superstore law for square-footage restrictions, thereby violating the A&P's "rights to due process" under the Constitution.
Favoring Locals?
The suit claims further that East Hampton is interfering with interstate commerce by "favoring local business and economic interests over out-of-state interests and discriminating against out-of-state interests."
The A&P is incorporated in Maryland and maintains its corporate headquarters in Montvale, N.J.
The planning and zoning issues are "clear-cut," Ms. Lester said Monday, "but this will take some time to get through the courts."
