The proposed expansion of the Harbor Heights Service Station in Sag Harbor will likely undergo a redesign. This is according to attorney Dennis Downes, who is representing property owner John Leonard in what has emerged as one of the most controversial applications before the Sag Harbor Village boards in recent memory.
Downes made the announcement during the Sag Harbor Zoning Board of Appeals (ZBA) meeting on Tuesday night. The Sag Harbor ZBA has spent the last three months considering Leonard’s application for the eight variances needed for the project to be approved — most notably a variance for the size of the proposed 972 square foot convenience store, which is capped under the village code at 600 square feet.
The actual size of the store, wall to wall including freezer space and the ADA compliant bathroom, is closer to 1,600 square-feet, and the proposed store’s size was at the forefront of Tuesday night’s debate.
For close to three years now, Leonard has sought approval to tear down the existing Harbor Heights Service Station and build a new 1,842 square foot building — slightly smaller than the original structure. The new building will contain the convenience store, as well as office space for the gas station, and is designed so it is pushed further onto the property and against the existing Sag Harbor Service Station. That building is proposed to be clad in wood and slightly expanded to include a bathroom and office space.
Gas pumps at Harbor Heights are also proposed to be moved perpendicular to the roadway and further into the property. A new canopy is proposed above the pumps, which will be expanded from four to eight fueling positions.
Neighbors and the not for profit Save Sag Harbor have charged the proposal goes beyond what should be allowed in what is largely a historic residential neighborhood.
On Tuesday night, Downes said he believes the village code is not clear on how one should calculate the square footage of the convenience store itself. The village code states that the size of a convenience store is limited to 600 square feet of gross floor area for the display of goods for retail sale.
Building inspector Tim Platt has asked the ZBA to interpret the code in terms of how the size of the store should be calculated. In the meantime, Downes and Leonard’s engineer Chris Tartaglia have said they have calculated the square footage based on physical retail space patrons can view and access. Ultimately, though, that decision is in the ZBA’s hands and Downes said he feels they cannot move forward with a solid plan without knowing where the ZBA stands on this issue.
“I think you need to come out between now and next month on what the code means,” said Downes. “Because you cannot design a project without knowing what the rules are.”
“It means wall to wall, basically,” said board chairman Anton Hagen, noting he believes the use of the words “gross floor area” is a specific definition. Gross floor area is defined in the code as being calculated by the wall-to-wall square footage.
Downes tried to argue the space behind the counter where the attendant stands should not count, but board member Michael Bromberg questioned why.
“Because it is not for the display of goods and the attendant is there for the gas station,” he said.
Bromberg countered a patron would still have full view of all retail goods and it should be counted.
Initially, the board approved a motion stating the square footage of the store should be defined by the wall to wall square footage, except for areas in the code defined as exclusions like stairways, cellars, storage only spaces and spaces reserved for mechanical equipment.
Downes said based on that information, the project may be altered and Leonard’s application amended before the board’s May 21 meeting.
However, after the initial vote, at Bromberg’s request the board created a new motion allowing Downes to discount the square footage in the ADA compliant bathroom — a motion that passed unanimously but was not viewed favorably by Save Sag Harbor attorney Jeffrey Bragman.
Resident and Save Sag Harbor board member John Shaka was the first to question the inclusion of the bathroom.
“Logically it has nothing to do with the display of goods,” said Hagen, adding ADA complaint bathrooms do require a lot of space.
Shaka questioned if this was not setting a precedent that would allow bathrooms to be excluded from square footage requirements.
Bragman came close to scolding the board for the action.
“For the record, you are an administrative board, you are not a legislative board,” said Bragman. “You are here to administer the law as written if the law is not ambiguous which it is not on its face.”
Bromberg countered the ZBA has the right to interpret the statute.
“You can’t read exceptions into the code where they do not exist,” said Bragman.
Another decision the board made was that it believes the canopy for the gas pumps should be viewed as a structure on its own.
Downes made several arguments on Tuesday night, including countering Bragman’s prior claim that the use on the property had already expanded beyond 50 percent — against village code. Downes said because the village code did not have a 50 percent expansion limitation prior to the 1980s, he believes the business has not expanded beyond what the code allows.
He also added he believes a variance granted to the property for the construction of the service station in 1972 should be viewed as a use variance, although it is not purposefully stated so, which would make the use of the gas station on the property a conforming use instead of a non conforming use.
He added that it is critical the station be updated, noting with the pumps and station literally on the right of way, it is an accident waiting to happen.
“It is just a matter of time before there is a major accident there,” he said.
Prior to the revelation that the project would be revamped, Bragman made several points to the board about the application, first being that Leonard has the burden of proof to show how the benefit to him will not be outweighed by the detriment to the community.
Bragman also said he believes all the variances granted to the station are dimensional variances — not use variances — and he also believes this project would constitute an expansion of a pre-existing, non conforming use. Non-conforming uses, he added, are not viewed favorably in the eyes of the courts, as they are meant to be phased out of communities.
Bragman said he does not believe the code supports a project that moves buildings or gas pumps around a property.
“There is nothing in the law that says I can move the building anywhere I want on a site, I can reconfigure a property — there is nothing in that section that says you can do that,” he said.
“You can’t just shuffle these uses anywhere you want,” said Bragman.