A&P's New Package: Two Stores In One?

The A&P Corporation may be down, but it's not out in its fight to build a large new supermarket on the former Stern's department store site in East Hampton.

The supermarket conglomerate submitted a new set of plans on Nov. 14, The Star has learned, calling for a roughly 24,000-square-foot building that it contends meets zoning regulations, despite the town's new superstore law.

Town officials disagree.

The new concept is for two separate but adjoining retail stores, under the same roof. Each is drawn to measure just under 10,000 square feet, the maximum size for a building in a neighborhood business zone. One store measures 9,999 square feet; the other, 9,984.

Are They Supermarkets?

The size of the stores frees them from being classified as supermarkets, A&P contends. Supermarkets and superstores are prohibited in districts zoned for neighborhood business.

A&P's lawyer, William Esseks of the Riverhead firm of Esseks, Hefter, and Angel, called the new application "an attempt by A&P to mitigate the damages that it is suffering as a result of the town's superstore law."

The passage of the law effectively quashed the company's plans for a single, 34,878-square-foot supermarket at the Stern's site.

Federal Lawsuit

The A&P Corporation filed suit in Federal District Court a year ago this month, charging the law was unconstitutional and seeking to repeal or modify it.

Mr. Esseks made it clear in a letter accompanying the new application that he believes the company is entitled to build the original store.

The lawyer argued Tuesday that the new plan conformed with the Stern's site's neighborhood business zoning as well as the superstore legislation.

Any Delicatessen

The two stores proposed cannot be classified as supermarkets, he said, because the code defines a supermarket as a superstore (10,000 square feet or over) that sells predominantly food items.

"We're building two retail stores under 10,000 square feet that sell the same types of goods that any delicatessen sells," said Mr. Esseks.

"The A&P can run a retail store of 9,999 square feet according to the code . . . the property is zoned to allow retail use and we're coming in with a retail use. A use is a use."

Town Disagrees

Richard Whalen, a deputy town attorney who helped draft the superstore law, did not agree. If there is a loophole in the superstore law, the A&P hasn't found it, he suggested.

"It clearly doesn't meet zoning," said Mr. Whalen. "There's no dispute about it at all. I don't know if [Mr. Esseks] didn't read the code or didn't understand it."

The Town Code's new definition of a superstore, he pointed out, notes that "a building whose gross floor area equals or exceeds 10,000 square feet shall be considered a superstore, even if it contains one or more retail stores."

Two Superstores?

Additionally, the definition considers any store located within a 10,000-square-foot building a superstore. Thus, each of the two A&P stores could be considered supermarkets, which are also prohibited in neighborhood business zones, he said.

Mr. Whalen also disputed A&P's calculation of the size of the stores.

Though the stores are designated as being below the limit, the sketch submitted to the Town Planning Department accompanying them depicts six "accessory" buildings attached to the main building, each nearly 600 square feet.

If the space is "under the same roof, in the same building," it is considered part of the floor space, said Mr. Whalen.

Liquori: 'Posturing'?

To separate the "accessory" portions, such as two entry vestibules, "is like saying your guest bedroom is an accessory building to your house," the town's lawyer said.

The town planning director, Lisa Liquori, said she too was miffed by the new site plan.

"They didn't even attempt to meet zoning. To me, this is the original application with a few lines drawn on it," said Ms. Liquori.

"I was wondering whether this thing was being done for posturing [in the lawsuit]," she added.

Parking In Front

Apart from the building, the rest of the site plan resembles the previous plan, with a main entrance at the intersection of Montauk Highway and Spring Close Road and a parking lot containing more than 180 spaces in the front of the building.

One of the recommendations in the recent Amagansett Corridor Study was that parking for new commercial sites be located to the side and rear.

Mr. Esseks stressed the A&P's preference for the original store in his letter to the Town Planning Department:

"If the litigation in the U.S. District Court is successful and/or the superstore law is repealed or modified, A&P will reassert its right to have the 34,878-square-foot retail store application processed and approved," he wrote.