The East Hampton Town Zoning Board of Appeals wrapped up the year with a decision that should allow for construction of an approved convenience store on North Main Street in East Hampton and another that gives retroactive approval to a boardwalk through the Atlantic Double Dunes in Amagansett.
In a unanimous vote, the board agreed to uphold the certificate of occupancy for 148 North Main Street issued in March by Tom Preiato. The C of O, which allows for a convenience store to share the Empire gas station property, was challenged by a neighbor, Jeffrey Slonim. He claimed that East Hampton Town Code does not allow for a retail store to occupy the same property as a filling station, and said that Mr. Preiato’s certificate of occupancy included former retail uses on the property that been abandoned. He also said that the new certificate of occupancy mistakenly allowed for uses that were not previously permitted on the site.
Mr. Preiato said the retail use on the site pre-existed the town’s prohibition on retail stores sharing property with filling stations; nevertheless, he also characterized the gas pumps there as an accessory use rather than as a filling station as defined in town code.
“I did not see any reason myself to vacate his decision,” Don Cirillo, the board’s vice chairman, said Tuesday. “I see this mainly as a timeline issue. It’s all going to hinge on dates, and if it’s applicable at those times. Was it pre-existing and not subject to these regulations? Mr. Preiato says yes.”
The board had asked Carl Irace, a deputy town attorney, to research what existed on the property in December 1994, when the town code was amended to prohibit a retail use on the same site as a filling station. Mr. Irace said Tuesday that his review of the public files on the property did not reveal anything beyond the information the board already had in hand. He did, however, address one issue that he said was a “reoccurring mistake throughout the record.” The date of the change in the town code was December 1984, not 10 years later as previously thought. “In that 1984 overhaul of the town zoning code, they added all of these definitions. A review of that showed the definition of a filling station was merely the same,” he said.
Among the businesses occupying the property in 1984 were a bait shop and a car rental business. There was some uncertainty as to whether a car rental business constituted a retail use in accordance with the code in 1984. “It’s probably more relevant to discuss what happened to that bait shop over time,” said Alex Walter, a board member. “The 1984 bait shop was replaced by Iron Works, then a garden shop, and in 1991 the barber shop came in. What was between ’84 and ’91? We don’t know the years or the sequence.”
Mr. Slonim’s attorney, Michael Walsh, had pointed out previously that town code defines a barbershop as a “personal service shop.”
Mr. Cirillo questioned whether there was any retail use on the site in 1984. “Now the question for me, to us, is whether or not we have a way to say that that was abandoned? I don’t see that from the record. I see transitions from one business to another,” he said.
Mr. Irace directed the board to ponder whether the barbershop counts as a pre-existing, nonconforming retail use, as indicated in a memo from Mr. Preiato to John Lycke, a former planning board chairman. Lee White, a Z.B.A. board member, offered his understanding of maintaining previous use: “The law is pretty low for keeping pre-existing nonconforming alive,” said Mr. White.
“If we can establish when the rules changed, and there was retail there, is the board within its rights to say the barbershop, which might sell hair products, is not retail?” Mr. Cirillo asked. “I find it hard to vacate that, I have no evidence to show they didn’t do it.”
“These particular structures have been in town and have always served a particular use. The gas station was there, these two particular buildings were there. In the ’80s it was a lot looser for retail businesses or neighborhood businesses. What transpired in these buildings was probably considered a retail use then. I’m just going by what I can say about the past,” said Philip Gamble, the board’s chairman.
After much discussion, the board ultimately decided that a retail use had been pre-existing on the property.
The zoning board’s decision appears to clear the way for the S&A Petroleum Group Inc., which owns the property, to proceed with plans for a new convenience store there. The company received town planning board approval for the store in October 2010.
In a phone interview yesterday, Mr. Slonim said he plans to appeal the decision. “I feel the code is extremely clear that a beauty salon and barbershop are not a retail store.”
The board also voted unanimously to allow a mahogany boardwalk to remain on Nature Conservancy property in the Atlantic Double Dunes in Amagansett.
The 620-foot long walkway had been built by Windsor Digital Studio and Larry Gagosian, owners of two neighboring properties, with the Nature Conservancy’s nod of approval. At a hearing on Dec. 6, there were questions as to who exactly had permission to build the walkway and whether it was a replacement of one that existed there previously.
Jonathan Sobel, who owns property to the west of the Nature Conservancy land, opposed the boardwalk and claimed it was not in accordance with the deeds granting the land to the Nature Conservancy or with town code, which protects the beach habitat.
“Both parties at end of night said, ‘We don’t know when it was constructed.’ If it was constructed after 1984, no one in the town cited them for construction of this. You have to assume, you can’t say one way or another, both parties said it’s not our burden; it’s their burden,” said Mr. Walter.
Mr. Sobel had said that if a natural resources permit was granted for the walkway there would be a proliferation of boardwalks in the area. “I don’t know if you can grant that conclusion,” Mr. Walter said. “Maybe there would be. Possibility there would be. I can’t agree with that assumption. There are five properties using this one boardwalk. . . . We should have structures that people should use for multiple properties.” Larry Penny, the town’s natural resources director, said that earlier aerial photographs did not show a wood walkway in that location, but the Nature Conservancy’s attorney, Richard Whalen, claimed that the walkway could have been obscured by sand.
“If you look at the aerial photos, back to ’38, you’ll see the walkways were well-established at that time. People used it for access to the beach, in this instance, it was used by multiple property owners. I believe this particular structure was in place, and the way it was constructed, it could be obscured by sand. I believe it was pre-existing,” said Mr. Gamble.
“They have rights to an easement, they could do this 10 feet wide if they wanted,” Mr. Cirillo said. “It was always the intention of the people who owned the property originally that the Nature Conservancy could use it.”