By Kathryn G. Menu
Whether or not the expansion of the Harbor Heights Service Station is an expansion of a pre-existing non-conforming use, in particular because of the addition of a canopy over expanded gas station pumps, continued to be at the heart of debate at a Sag Harbor Zoning Board of Appeals (ZBA) hearing on the project Tuesday night.
Listening to Save Sag Harbor attorney Jeffrey Bragman, the expansion of the gas pumps at the Hampton Street service station is at the center of one of the key arguments against allowing the development to go forward in its current form. Property owner John Leonard’s attorney Dennis Downes countered neither the canopy nor the expansion of pumps should even be on the table for debate because of case law, village code and the scaled back plan developers presented to the board last month.
At the same time, after waiting hours to speak, a handful of village residents and one resident of Noyac spoke out against the project, lamenting its impact on the surrounding neighborhood.
After years of review, last month Leonard’s team presented scaled back plans for the expansion of the service station, slashing the number of variances in half in order to move the project closer to approval.
Leonard now proposes to have a convenience store located in the existing building on Hampton Street. A total of 718 square feet, according to the application would encompass the store, although the applicant has argued 120 square feet would be used for a gas station attendant and for the sale of automotive goods linked more to the gas station than the store.
The plan still includes four new pump islands in a new location with eight hoses, an expansion from the five hoses — including a diesel nozzle that is being abandoned — that currently exist on the property. A canopy covering the pump islands does not need a variance, although village attorney Denise Schoen has said the board will have to determine whether an expansion of the pumps is an expansion of the station’s pre-existing, non-conforming use.
Variances are also needed for a landscape buffer, which is proposed at 21 feet and 10.6 feet and is less than the code’s required 30 feet on two sides of the property.
On Tuesday night, the floor was given to Bragman who opened by noting this application is different from most in that it deals with a pre-existing, non-conforming use.
“And in that case, nothing is as of right,” he said.
Bragman said that pre-existing, non-conforming properties are often viewed with disfavor in courts and municipalities who rule against expansion often find support.
“The right to continue use does not grant the right to extend the use,” he said.
Bragman argued Leonard cannot shuffle the pieces of his pre-existing, non-conforming business around the property. If the building is torn down, it would lose its vested rights, he said.
Bragman added he believes the square footage of the space planned for the store is actually closer to 944 gross square feet, including the square footage of bathrooms, which he noted should not be excluded in square footage calculations.
Later, Leonard’s engineer said the building was not being rebuilt and would keep its existing walls. Schoen asked engineer Chris Tartaglia to provide in writing construction plans on how the building will be renovated for the board’s review.
Bragman noted the variances for landscaping, while appearing small, have a “tremendous” impact on the neighborhood.
“Those landscape buffers are what are protecting the neighborhood from this development,” he said.
“If you look at variance standards, the thing that remains the same is it is still possible to meet code and have a convenience store and gas station without variances,” said Bragman. “Because he can do that, he is not asking for the minimum variances necessary.”
Bragman also argued the proposed canopy should be viewed as a primary, not accessory, building as it houses the main component of a gas station — the pumping of gas. As a result, he said, there is no more blatant an example of the expansion of this use than the expansion of the gas pumps.
Board member Brendan Skislock asked Bragman to comment on a case Downes presented last month. In Tartan Oil Corp. v Board of Zoning Appeals of Town of Brokkhaven, Downes noted a case similar to Harbor Heights went to a court of appeals when a station was denied a variance to have a convenience store in an existing building with expanded pumps and a canopy. The variance was denied on the basis it was an expansion of a non-conforming use and the court overturned that decision.
According to Schoen, the court overturned the decision because Brookhaven’s code prohibited the extension of a non-conforming use but not its alteration. Modernizing the gas pumps was viewed as not being an expansion as it was not prohibited under Brookhaven’s code, said Schoen.
Bragman was not able to speak to the Tartan case, but said he would respond in a memo.
Bragman continued to argue that the canopy should be viewed as principal by the ZBA, which can overrule building inspector Tim Platt’s determination that it is an accessory structure and therefore permitted.
He noted if it was accessory it would need to be a subordinate use to the gas station, when the canopy is larger than the existing building and will house the actual pumping of gas, the primary function of the business.
Eunice Vaughn, president of the Eastville Community Historical Society, said the society was very concerned about the project.
“We are very concerned about the size of that gas station and its appearance because it doesn’t fit in with our community,” she said.
Resident Kate Plumb has lived in the village for 26 years. Plumb respects the uniqueness of Sag Harbor, but also the uniqueness of the historic Eastville community.
“It’s a respect for that part of our unique village that often time gets overlooked and forgotten about,” said Plumb.
“What is happening in Sag Harbor is everything is getting ballooned out and we are losing the character of this quaint little village,” said Plumb.
Neighbor Michael Butler called the on the board to ensure a 30 foot landscape buffer to his property, which is not proposed in the current plan.
Save Sag Harbor member and Hampton Street resident John Shaka also reminded the board a petition with about 800 signatures, representing a large number of community members in Sag Harbor, had already been filed with the board asking that this project meet the village code.
Noting the board discussed the intrusion of swimming pools on neighbors earlier in the meeting, Shaka argued a 30 foot buffer was a reasonable request.
“You would do that if it was a swimming pool,” he said. “You should really do that if it is a gas station.”
While a challenge has been made by Reverend Ken Nelson of the AME Zion Church over Platt’s determination that the canopy is an accessory use, the board suspended discussion on that matter while the timeliness of the complaint is explored.
Tartaglia said he did not believe the board could consider the canopy as it does not need a variance.
“There is still a legal question as to whether the canopy is accessory or principal,” reminded Schoen, noting the board will have to make that determination.
Downes countered the code permits canopy structures for filling stations and it is designed to meet code so it is not before the board.
“So the half hour or 45 minutes of smoke you got tonight is irrelevant,” he said.
Because it is permitted, Downes said once a special exception permit is granted for the station it becomes a permitted use and not a pre-existing non-conforming use.
“The argument is do you want a gas station that looks like it does today or do you want something a little more modern that takes care of the community,” said Downes.