By Kathryn G. Menu
Unless Harbor Heights Service Station property owner John Leonard agrees to an extension, at its January 20 meeting the Sag Harbor Zoning Board of Appeals (ZBA) will need to formally decide on three variances that will either win Leonard approval for a fiercely debated project or, short of a lawsuit, kill it.
During a special work session on Monday, ZBA members puzzled through the application, discussing case law and arguments for and against the proposal, which would redevelop and expand the existing Route 114 gas and service station, including the addition of a convenience store.
Monday’s work session, which did not allow for public comment as the record is closed on the application, was the first time ZBA members discussed their opinions about the case, although any definitive conclusions about whether to approve or deny any one variance were kept close to the vest.
At the close of the meeting, the ZBA tentatively scheduled another work session for Friday, January 10 at 2 p.m. It is expected the board will straw poll its membership during that session in advance of a formal approval or denial at its January 20 meeting.
The project redevelops the Harbor Heights gas station and Sag Harbor Service Station, rebuilding the Harbor Heights building in its current footprint and including in those walls what developers say is a 718 square foot convenience store. Gas pumps are moved from Route 114, where currently they almost sit in the roadway itself, further into the property. Leonard is also adding fueling positions, increasing the number from the four it currently has on site to eight and covering a majority of the pumps with a lit canopy. He has also proposed parking throughout the site and landscaping.
Leonard needs variances for the size of the store, which is 118 square feet larger than what is allowed in the village code, for not providing enough landscaping to meet code and for a setback for the Harbor Heights gas station building itself.
Village attorney Denise Schoen opened the meeting by discussing Tartan Oil Corp. v. Board of Zoning Appeals of Town of Brookhaven. In that case, both Leonard’s attorney Dennis Downes and engineer Chris Tartaglia have noted the similarities to the Harbor Heights application. In that case, the station was seeking a convenience store in an existing building as well as expanded gas pumps and a canopy. A variance was denied on the basis it was an expansion of a non-conforming use and the court overturned the Brookhaven ZBA’s decision.
Schoen noted the Sag Harbor ZBA, which is considering whether the Harbor Heights proposal is an expansion of a pre-existing, non-conforming use, must determine whether the Tartan Oil case is similar enough that the court’s decision should have standing. If the ZBA did determine the Harbor Heights proposal was an expansion of a pre-existing, non-conforming use, Leonard would need a use variance — a variance Schoen noted is quite difficult for anyone to earn from a ZBA.
“They look identical,” said ZBA member Tim McGuire.
“And the court seemed to rule in that case it is not an expansion of a preexisting, non-conforming use,” he added.
Schoen noted the village code does not specifically define what would constitute an expansion of a preexisting, non-conforming use.
“If your code doesn’t address it, you have to rely on what courts have said to deal with this,” she added.
Setting the Tartan case aside, the board began to look at the overall project and walk through each of the variances, one by one.
“Are they trying to do something that doesn’t fit the property and then come back and ask for variances or is it the best possible scenario and design for the property,” asked board member Brendan Skislock.
Board member Scott Baker noted the opposition has created a code conforming plan, although the project is reduced in size and does not include an expanded fueling area.
When looking at the benefit to the applicant, chairman Anton Hagen said he had a difficult time defining the benefit to Leonard stating the board has little to go on.
In fact, Tartaglia and Downes submitted studies to the Sag Harbor Planning Board, a study that is a part of the ZBA’s record, that show the financial benefit of having a convenience store on the site, but also arguing for a store of a certain size in order to ensure it can carry a full compliment of goods patrons expect at a convenience store.
Skislock noted a benefit of moving the pumps into the property is getting them away from Route 114.
“Now the question is can they achieve that without us giving variances,” he asked.
Baker again pointed to the opposition plan, which while smaller, does move fueling off Route 114.
“But there is a detriment to this too, which is even though it is off the street it pulls the traffic closer to the neighboring residences,” noted Baker.
“We all know they could reconfigure this without variances,” said Hagen. “There is no obstacle as far as that is concerned.”
“Most courts would say if there is a way to redesign where the same benefits can be achieved there should be no variance application,” said Schoen.
Looking at the benefit to the community, McGuire called the current pumps “a total accident waiting to happen.”
“It’s scary,” he said.
“But they could reconfigure the pumps without variances,” added Hagen.
In terms of whether it would cause an undesirable change to the community, Hagen pointed to the reams of letters submitted to the ZBA by residents concerned about the impact the project will have on Sag Harbor.
“I don’t think that for the community it is a positive thing that the store is there,” said Skislock.
Hagen said he believes the code regarding the size of the store — limited to 600 square feet in the 2009 zoning code revision — was kept small for a reason.
Whether the variances are substantial, said Baker, is a mixed bag. The variance for a front yard setback for the reconstructed Harbor Heights building is 15.6 feet where 50 feet is required. A variance is necessary because the convenience store, new to the property, would be located in that building. That is a large variance request, said Baker, whereas the variance for the size of the store, 718 square feet rather than 600 square-feet, is not a large variance request. The variance for a landscape buffer, which varies from 10.6 feet to 21 feet where 30 feet are required, is also substantial on one side of the property, he added.
“We always have to keep in mind, the board should grant the minimum variances necessary,” said Hagen.
“Is this the minimum they need or is it their complete wish list that in their perfect world is reasonable,” he added.