Damark’s Deli Wants to Super-Size

Owner hopes to swap apartment approval for food prep in the basement
The popular but cramped Damark’s Deli could soon be super-sized, according to plans being considered by the East Hampton Town Planning Board. T.E. McMorrow

Damark’s Deli, a popular delicatessen on Three Mile Harbor Road in East Hampton, seems about to become a much larger store even though questions have been raised by a few East Hampton Town Planning Board members, the board’s attorney, and the town’s head building inspector. If approved, the plans before the planning board would make it the largest retail prepared-food business in East Hampton.

The planning board approved an application for changes at Damark’s in 2012 despite the fact that the floor of the basement would have been less than three inches above groundwater, meaning construction would take place well in the  groundwater in an area classified as a harbor protection overlay district.

That application began in 2009 with a proposal to increase the first floor of the building to 4,571 square feet and the basement to 3,907 square feet. Plans at the time called for a 1,770-square-foot apartment in the two-story structure. The planning board approved the site plan in March of 2012, but Bruce Damark, the owner, never acted on the project although approval required that a building permit be obtained within three years.

Under the current plan, the cramped space the deli occupies would be enlarged many times over. With the basement floor area included in the total square footage, the new structure would be a “super store” under the town code, with over 11,000 square feet of floor area. How much of the basement should be counted in the calculations is one of several questions.

The building, which was built before zoning was adopted, was originally a residence, and there is no record of its having a certificate of occupancy. When asked by Reed Jones, chairman of the planning board, on Aug. 17 about the new application, David Kirst, an attorney with Eagan and Matthews, said the approved site plan was never pursued within the time permitted because financing was not, at the time, available.

In the site plan now, the apartment is gone, with more than 1,400 square feet originally planned for the apartment added for a total of 6,000 square feet in the basement and 5,400 square feet on the first floor.

On Aug. 10, Nancy Keeshan addressed what turned out to be a controversial matter, saying the site plan should be treated as a new one rather than a modification. With two board members absent, one of whom was the chairman, Ms. Keeshan, the vice chairwoman, put the question to a vote. She was joined only by Kathleen Cunningham, with the resulting 3-to-2 vote meaning the plan would be treated as a modification. John Jilnicki, the attorney for the board, however, said on Monday that the vote was not binding.

Damark’s Deli was again front and center at the planning board meeting on Aug. 17, during which Mr. Jones read an email from Ms. Cunningham, who could not attend. In it, she expressed strong opposition to the new plan. She pointed out that Mr. Damark never applied for an extension of time under the 2012 approval. Now, Mr. Jilnicki said Monday, if Mr. Damark does not apply for a time extension, any modification would be of a voided site plan.

 Mr. Jilnicki also cautioned the board that if it were to hold Mr. Damark to the language in the 2012 approval, it might be acting in an “arbitrary and capricious” manner. He said time limits had been intended to give the board control over any major changes after it granted approval.

In her email to the board, Ms. Cunningham said, “I have several serious concerns regarding the cellar, as it will be built only three inches above groundwater, which, as a practical matter, is in groundwater.” She also questioned whether the plan was in the interests of good planning for Three Mile Harbor. “Just because it can be done doesn’t mean it should be done,” she said.

Her point of view was not shared by some of the board members. “We have to be careful in questioning previous determinations,” Ian Calder-Piedmonte said. But Job Potter asked, “Why is it okay to put this in with so little space to groundwater?” Patti Leber pointed out that the basement would now be well over 20 percent larger than in the previously approved site plan. She asked that the plan be sent to the Building Department for a review of total floor coverage in the basement.

The applicant’s representatives have said that almost the entire basement would be used for storage and an employee locker room was deemed storage. The problem for the board was determining how much of the approximately 6,000 square feet of the basement was being used exclusively for storage, and how much was being used for other purposes. Only 720 square feet is shown in the gross floor area calculation.

It also seems that the expanded building’s use as a catering facility would be of concern for Anne Glennon, the town’s head building inspector. She said catering could be considered a second use, which would trigger the need for more employees and more parking spaces. “They have to stay within the limits of what neighborhood business allows,” she said, referring to the property’s zoning. “What throws you to site plan is septic, parking, or additional seating,” she said.

One point all planning board members agreed with is the need for a public hearing. “A public hearing is very, very important,” Mr. Calder-Piedmonte said.