Is It a Convenience?

Plan for North Main Street store is challenged
Morgan McGivern

    The East Hampton Town Zoning Board of Appeals heard an application on Tuesday evening that challenged a certificate of occupancy granted for the property at 148 North Main Street, East Hampton, adjacent to an Empire gas station, where a convenience store has been approved.
    Tom Preiato, senior building inspector, determined that the buildings on the property are pre-existing and nonconforming in August 2009, and issued the C of O this past March. The planning board approved the proposed convenience store in a unanimous vote in October 2010.
    But Jeffrey Slonim, who lives next door at 152 North Main Street, said in a letter to the Z.B.A. that “we were not notified when Empire first presented their plan to build a convenience store . . . though we have a North Main address. Nor was the Hoff family, who then lived beside Empire, on the other side of our small access road.”
    When Mr. Slonim discovered that a site plan had been filed, he had his attorney, Michael Walsh, take action. “We filed an appeal,” Mr. Walsh told the Z.B.A. “It went to the Supreme Court in Riverhead, and they granted an injunction and said, maintain status quo. They had us come to your board, you’re the proper appellate.”
    Mr. Walsh told the board the town code does not allow a supermarket, delicatessen, convenience establishment, or other retail store on the same lot as a filling station. The two buildings on the property now, a barbershop and an abandoned car rental agency, are “service businesses,” a different use, not retail stores. In its application to the planning board, Empire proposed to take [the two business uses] and convert them into a “mercantile” use. Empire would then be in compliance with the state building code, the lawyer noted, as mercantile use allows for the retail sale of goods. (Empire’s lawyer, however, said later that town law, not state, controls here.)
    In 2008, Mr. Walsh told the board, Don Sharkey, then chief building inspector, received complaints of a retail operation at the site, and that use, a convenience store, was removed. “There’s no way the building inspector could’ve taken the position that there was a retail position at the site” when Empire went before the planning board two years later, he said.
    Many nearby residents who have opposed the convenience store attended the hearing. Some said they had been unable to express themselves before, and they wanted their voices heard now. “I’m here to support the neighbors,” said Nancy LaGarenne. “A convenience store? We don’t need it. Damark’s is open late, I.G.A. is open late, that area is a problem. With the traffic into Nick and Toni’s, the cleaners, we really have to fight to keep a neighborhood. Otherwise it’s going to look like UpIsland, and I don’t think anybody wants that.”
    Another neighbor who lives close to Empire was concerned with the future. “We are talking about the traffic because we didn’t have the opportunity last time around when it was passed through. This is our chance, this gas station is part of our community, it’s our responsibility, mine and yours,” said Molly Clevenger.
    “If it happens here, why not another empty place, and then another?” Maybe they’ll want to put a Kmart there?” asked Jim Lagarenne.
    In response to the protests, Alex Walter, a board member, said, “It’s up to us as to whether that C of O issued in 2011 was right or not. I don’t want people in the audience to think that whatever decision we make about the C of O has anything to do with whether or not we want a convenience store. That’s our job.” Don Cirillo, vice-chairman of the board, who was chairing the meeting in Philip Gamble’s absence, concurred, adding, ‘It’s an emotional issue, there’s only certain things we can do.’ ”
    Mr. Walsh also reminded the board that Mr. Sharkey had found the barbershop and car rental agency in violation of the code in 2002, and had noted that retail uses could not be commenced on the site. “We submit to you that there is no fair reading of this code where you can conclude that a retail store or convenience store can be commenced at a filling station site,” he said.
    Mr. Walter asked what type of violations. Mr. Walsh said they were for having no site plan for those uses.
    Mr. Slonim stressed that “there are a number of businesses at this site. They park taxis there, it’s difficult for us to get out of our driveway, there’s a limousine parked there. Empire causes traffic already. This is a bottleneck. The traffic on North Main Street, all summer long, it can take 20 minutes to get out of our little access road. It’s like playing chicken to get out. I don’t know how another business could be there.”
    Mr. Cirillo told Mr. Slonim that this hearing was about the certificate of occupancy, and the Z.B.A. was not in a position to rule about traffic.
    According to Tiffany Scarlatto, counsel for Ali Yuzbasioglu and S&A Petroleum Group Inc., there is no mention of the property as a filling station in town records. In April 1957, the owner was issued a permit to construct a “service building,” which went up before the zoning code was enacted later that year.
    “The uses [over the years] were conforming uses, both in a central business district and a neighbor business district. The uses are conforming with zoning as it exists today,” said Ms. Scarlatto.
    “The nonconformities consist of the number of uses on the property. You’re limited to two; currently there are three. The proposal was to eliminate one of the uses and bring it down to two.” In 1987, she said, a C of O was issued for one service station and two businesses, adding that the definition of a filling station was changed in 1994 — apparently to language that would benefit the applicant.
    Mr. Cirillo said that the certificate of occupancy in 2003 does not say “filling station,” but “motor vehicle repair garage with accessory gasoline dispensing pump island.”
    A member of the audience, J.B. D’Santo, offered his take on the somewhat complex semantics involved. “You can dress a pig any way you want, but it’s still a pig,” he said.
    Mr. Preiato stood up toward the end of the hearing. “Unfortunately, a lot of inaccuracies were displayed here this evening,” he began. “As far as someone coming up and saying there was never a retail store, that’s absolutely false. In 1975 there was a retail store. It’s a neighborhood business. This is water under the bridge. It’s too late for an attack on neighborhood business.”
    Of the property, he said, “It has two uses. A neighborhood use doesn’t get abandoned. It does not. I stand with my C of O. It’s pretty straightforward. Mr. Walsh feels that some of the uses were abandoned. It’s not what I want, it’s what you’re gonna get, it’s what the code is gonna give. The facts are stated.”    
    Both the barbershop and car rental uses are permitted in the neighborhood business zone, he added. “That’s why I made the clarification on the C of O, for that reason. In 1987, for central business uses, that should’ve carried on through. I don’t know why Mr. Sharkey [put it differently]. The beauty of this property is that retail is allowed.”
    At the conclusion of the hearing, Mr. Walsh told the board that Empire is referred to as a filling station numerous times on town records, including a notice of violation that was filed by the building inspector in 2008. “You can’t have retail where there is a filling station,” he insisted. “Clearly, a retail store is prohibited.”
    The board must now determine if the certificate of occupancy was made in error, and whether Empire is a filling station or not.
    The record will be kept open for the next 30 days so that Ms. Scarlatto can submit a written response to Mr. Walsh’s argument. He will be allowed to submit a rebuttal in that same time frame.


Comments

Great article. This is a terribly complex issue, and there has never been a reporter before who attempted to capture the legal complexities. I was just told by a very learned lawyer local lawyer, who simply cares about the history of North Main, that they can't interpret a statute that isn't ambiguous. There is no ambiguity, Empire is a filling station. They serve gas. Whether or not they fix cars does not affect that fact. They are asking for a retail store. There have been retail uses at this site, never a legal retail store. The building inspector seems to be under the impression--he wrote this on the inspection--that if the buildings existed before code, the uses are unaffected by code. Not true. My house is old, can I open a strip club? I was enormously disappointed that he was said "Bullshit" out loud while my lawyer was making a legal argument. His lack of paperwork (the his inability to express how and why he had interpreted the codes); his report had the wrong year on it) and inability to express exactly what he was up to has created a great deal of expense for my legal team ($35,00 to date). By making this decision himself, by allowing Empire to not ask for a variance, he circumvented public interest and involvement. The planning board said the matter had already been decided (by the building inspector) and they couldn't discuss public safety or traffic issues. And the Zoning board, said that such matters were up to the planning board. So one man has decided the future of a very historic, primarily residential neighborhood. He has interpreted the code incorrectly. A supreme court justice in New York has sided with my lawyer on these interpretations and put a restraining order in place. This building inspector went against that order and put a new C of O in the file. That is the only reason we were able to meet with the ZBA and ask for their interpretation on this matter of code and law. This was an end run, around a neighborhood that is historically known to fight to protect itself, and rather forcefully. We are hoping this project can be stopped. The board was actually very respectful and thoughtful and we had a lively discussion (they were not dismissive). That said, the building inspector had a combative tone and turned to me personally during this meeting and said, "It's not what you want, it's what you're going to get." This was likely picked up on video. This is apparently why Montauk now has a 7/11 that sells Beer Pong in great quantities. It is why many hundreds of revelers are now urinating in Fort Pond near Surf Lodge. It is why sites that already have several uses, have been allowed to have several more. And it is why Empire, which already has several uses in progress, is attempting to ad a convenience store at a terrible traffic bottleneck. This is public safety. The comprehensive plan is very clear about this, more traffic will make it difficult to get rescue vehicles to the Springs. Voters will have a voice in November. But for the future of North Main, we are only hoping that the law and codes will be followed accurately. Jeffrey Slonim
while i dont have a view on this issue one way or another, and I understand your concern for your neighborhood, i wish people would stop using montauk's 7-11 as the reason for denying permits to people. there is no problem with montauk 7-11. In fact, it has been a very welcome addition to the town. They dont sell beer pong balls "in great quantities." they sell beer pong balls just the same as every IGA, Whites, beer distributor and deli throughout EH Town. Also, there are not hundreds of people urinating into Fort Pond. Thats the picture the minority voices (who want montauk to stay what they want it to be, everyone else be damned) want you to believe.
The Town Board Should be fired!! That's all that needs to be done.
Election time !
To be 100% accurate, there are actually 4 businesses on the property as Empire rents out the garages to an outside mechanic!