A complex application challenging the authenticity of a certificate of occupancy for the property at 148 North Main Street in East Hampton, home now to an Empire gas station, and other businesses, was the subject of a lengthy discussion at an East Hampton Town Zoning Board of Appeals meeting on Nov. 22.
The certificate of occupancy, issued in March by Tom Preiato, the senior building inspector, allows for a convenience store to share the gas station property. The owners of the property, Ali Yuzbasioglu and S&A Petroleum Group Inc., received town planning board approval for a new convenience store there in October 2010.
Jeffrey Slonim, who lives at 152 North Main Street, has appealed Mr. Preiato’s decision on the grounds that East Hampton Town Code prohibits a “retail store,” defined as place where “goods are offered for sale to the general public as takeout items,” on the same premises as a filling station. He also questions the validity of a certificate of occupancy that includes previous retail uses on the property that have since been abandoned. Additionally, the new certificate of occupancy includes a change of permitted uses from the original, he said.
Mr. Preiato based his determination in August 2009, which led to the March certificate of occupancy, on pre-existing and nonconforming buildings at 148 North Main Street.
Don Cirillo, vice chairman of the zoning board, led the discussion on Nov. 22, as Philip Gamble, the board’s chairman, had been absent during the hearing on Sept. 20. “I see this as two separate items that have to be looked at,” Mr. Cirillo said. “These involve the technicalities behind the rationale of issuing the C of O, and the legalities of a pre-existing business. Should we, as a board, overrule our building inspector — which was a clarification, in my opinion, of the C.O. — whether or not he was fundamentally changing the C.O. or correcting an oversight by a previous building inspector?” Mr. Cirillo asked.
“It appears as though, from the record, Mr. Sharkey [former chief building inspector] had used some state criteria, and it was clarified by Mr. Preiato to reflect the town code. Attorney [Michael] Walsh [Mr. Slonim’s counsel] asks whether or not a basis for a C.O. was there. Was a retail business there? It was questionable. Was the property abandoned, was it a previous use, was it a retail use, or pre-existing?”
The board focused its attention on attempting to trace the history of businesses on the property. While the first certificate of occupancy was issued in 1987, several different businesses have been in the two buildings over the years. The current certificate modified the language from the original “Group B business uses” to “central business uses,” which would allow for retail uses not permitted under the Group B classification. Carl Irace, the town attorney, asked the board to ponder whether this change to “two central business uses” was right or wrong.
In a memo from Mr. Preiato to John Lycke, chairman of the planning board, erroneously dated Aug. 21, 2009, but actually filed on May 5, 2010, Mr. Preiato wrote that “after reviewing our files and records it is currently evident in the code . . . that ‘filling stations’ and ‘retail’ are not permitted on the same lot. However, such is not the case on this particular lot as retail has been a pre-existing use and is reflected on the existing certificate of occupancy . . . dated April 2, 2003, as ‘business uses.’ ”
He also pointed out that the certificate of occupancy at the time made “no mention of an actual ‘filling station’ exisiting on the lot. He acknowledged “the accessory gasoline dispensing pump island could possibly constitute a filling station, but is a moot point in light of the fact that the retail use is pre-existing.”
On Dec. 2, 1994, the town code was amended to prohibit a retail use at the same location as a filling station. Board members devoted most of their discussion last week to what business occupied the premises that year. “I see this more as upholding the C.O. that was done as a correction in 2011, but then going back to see what was on the property in 1994 so you could say or not say there was a pre-existing use,” said Alex Walter, a board member. If there were a pre-existing use that would not be allowed under the current code, would it be affected by the new law, he asked.
“What was on site in ’94, those are the critical facts,” Mr. Irace said.
“At the time, there was no retail store where you take out goods in 1994, I don’t believe,” Mr. Walter said.
Sharon McCobb, another board member, was absent from the work session, but Mr. Gamble read her written opinion aloud. “The correction of language ‘Group B’ business use does not make a difference, it’s purely an administrative change in language,” she wrote. “I do believe Tom Preiato’s memo to the planning board was incorrect. There is no paper trail that retail existed after the 1990s.” The adopted law that prohibited retail on the same property as a filling station “to me, that supersedes whether or not retail is allowed on the property,” said Ms. McCobb.
The board then discussed a barbershop that is on the property today, and whether or not it constitutes a retail use.
“I don’t know. If the beauty salon is selling combs, is that retail use? Maybe something so slim would qualify as retail,” said Mr. Irace.
Mr. Walter said it sounds like “retail use and retail store are two different things.” However, in the town code, a beauty salon falls under the definition of a “personal service shop” and not a “retail store.”
Reading from a Building Department list of violations on the property dated Aug. 21, 2002, board members noted that what had been a garden shop had changed to a personal service shop — the barber shop. “Sounds like it swung right in,” said Mr. Cirillo.
“It also sounds like it wasn’t legal,” said Lee White, another board member. They tried to piece together the chronology, but the information was not clear. “If it was pre-existing, why was it going through site plans?” Mr. White asked.
Mr. Irace speculated that maybe the applicant received bad advice. “There are violations,” said Mr. White, “They don’t come out of thin air. My guess is there wasn’t a C.O.”
Mr. Walter said the board needed clarification of what businesses were there in 1994, and what happened after the violations in 2002. “Then I think we have enough information to make a determination of the validity of the building inspector’s memo to the planning board.”
The board hopes to have more information in time for its next work session on Tuesday.
Following the public hearing on Sept. 20, the record was kept open for 30 days so that Tiffany Scarlatto, the attorney for the property’s owners, could submit a written response to Mr. Walsh’s argument. He was then allowed to offer his written rebuttal.
In her response, Ms. Scarlatto stated the original certificate of occupancy from 1987 was for “one service station and two structures containing central business uses.” Although there are gasoline pumps on site, she said the primary use of the property is as a service station.” Also, “the northernmost building and its use, known in the past as Pam’s Car Rental and Sales, still exists on the premises today.” Ms. Scarlatto asserts that a convenience store is a permitted use that conforms with current zoning rules and that a retail use was never “abandoned,” because only nonconforming uses can be abandoned.
She agreed with Mr. Preiato that the property now has a motor vehicle repair garage with accessory gasoline pumps, and two business uses: one a personal service shop, the other a retail store. While the retail use has changed over the years, Ms. Scarlatto said the changes are permitted without site plan approval unless there is a need. Finally, she argued that the 2003 and 2011 certificates of occupancy should be upheld as there were no substantial changes to the uses.
Mr. Walsh responded on Oct. 20, that the car rental office closed about three years ago, and said that the owner of Empire gas station leases out the service bays in the repair garage building on their lot to an auto repair business, Cars East.
“The building inspector’s determination is based on two legal mistakes,” Mr. Walsh wrote. “First, he overlooked the code’s clear definition of a ‘retail store’ and applied instead his own undefined notion of ‘retail.’ Second, he improperly relied on prior uses that have been abandoned as a matter of law.” In 2010, when the determination was filed, the pre-existing retail store uses had been discontinued for at least eight years, Mr. Walsh said. He pointed out that town code does not permit abandoned non-conforming uses to continue.
The town’s property records show that no businesses other than the barber shop and car rental office have operated in the two buildings since at least 2002, he said. “The barber shop is a personal service shop and a car rental is not a ‘retail store’ or even a ‘retail use.’ ”