By Kathryn G. Menu
With one of the largest, and most contested, proposals since the condominiums at the former Bulova Watchcase Factory on the Sag Harbor Village Zoning Board of Appeals’ (ZBA) agenda, last Thursday, village attorney Denise Schoen and chairman Anton Hagen called the board together for a work session.
The goal of the session was to help board members wrap their brains around the application to allow for the expansion of the Harbor Heights Service Station on Route 114.
“My goal is just to make sure the board knows what the variances are and what the legal issues are,” said Schoen, noting there may be some unresolved legal issues that could pose a problem for John Leonard’s application.
Leonard is proposing a 1,842 square foot building, with a 972 square foot convenience store within it. Several areas, where goods are not visible, including the bathroom, have not been counted towards the square footage of the store. Four pump islands with eight fueling positions are proposed under a canopy, as are two new curb cuts into the property, 32 parking spaces and new landscaping.
Specifically, Schoen referred to some of the initial arguments made by Jeffrey Bragman, an East Hampton attorney representing Save Sag Harbor, which has joined a large group of neighbors in opposition to the plan.
Most of the time, ZBA applications ask for an area variance to allow something that dimensionally is against the code to proceed on a property, noted Schoen. A use variance authorizes a land use not normally allowed on a property and carries such a high burden on the applicant it is rarely given.
At last month’s meeting, Bragman argued that the replacement of a sign in a new location, as well as the expansion and relocation of gas pumps on the Harbor Heights property, should require Leonard to seek a use variance from the board.
“My greatest concern is the number of pumps,” said Schoen on Thursday. “It would be very interesting to see what the argument would be on both sides.”
Schoen said the ZBA will also need more information on the proposed sign before it can weigh in on that variance, including what it will look like.
Schoen added that the ZBA will also be tasked with defining what the village code intended when it regulated the size of a convenience store to 600 square feet. In 2009, the village code was rewritten to allow filling stations to have convenience stores.
“In no event shall a convenience store exceed 600 square feet of gross floor area for the display of goods for retail sale,” is the exact wording in the village code.
Leonard’s engineers have argued that within a total 1,842 square foot building, just 972 square feet should be considered part of the convenience store because that was the area where patrons could reasonably view and take retail goods from the store.
However, last month Bragman argued that was not the intent of the village when it drafted that law. He noted under the definition of “filling station” in the village code it states a station may include a convenience store “of 600 square feet or less.”
“When analyzing the variance for the store we are not making a decision on whether or not it is allowed to be there,” cautioned Schoen, noting it is the size the board must consider.
“This code section was very strongly worded,” she added. “It has a lot of language here that seems to draw a line in the sand.”
However, said Schoen, the legal system does provide the right to seek relief from a ZBA, regardless.
Schoen asked that both Bragman and Leonard’s attorney Dennis Downes make sure to provide all of their arguments in writing, including supporting case law, to aid the ZBA in their decision.
Bragman will continue his arguments at the ZBA’s March 19 meeting and it is expected Downes will counter some of his arguments. The public at large, added Schoen, has had little time to comment on the case and will also likely want to be heard before the ZBA can close its public hearing and move into deliberations.