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Sag Harbor ZBA Nixes Most Variances for Harbor Heights Project

Posted on 22 January 2014

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The Harbor Heights Service Station in Sag Harbor. 

By Kathryn G. Menu; Michael Heller Photographer

After three years of review, it appears the redevelopment of the Harbor Heights Service Station in Sag Harbor, including the addition of a convenience store, will not move forward as currently planned.

Last week, four Sag Harbor Zoning Board of Appeals (ZBA) members voted in a straw poll to decline a number of variances necessary for the long-debated project to gain approval.

Station property owner John Leonard, under the limited liability corporation Petroleum Ventures, has proposed to redevelop the gas station and accompanying Sag Harbor Service Station, rebuilding the Harbor Heights building in its current footprint and including within those walls a 718 square-foot convenience store. While the village code, rewritten in 2009, allows the station to build a convenience store as an accessory business to the gas station, it limits the store size to 600 square feet, and also includes setback restrictions and landscape buffer requirements meant to protect neighboring residences from being impacted by a commercial business.

In Leonard’s proposal, three gas pumps — two with four nozzles that currently sit on Route 114 and a third diesel pump — would be moved off the roadway and would be sited perpendicular from the roadway. Leonard also proposed to add an additional pump for a total of eight fueling positions, all of which would be situated under a new, lit canopy.

While Leonard met parking requirements for the project, in addition to a variance for the size of the convenience store, he also needed a variance for not providing enough landscaping to meet the village code and for a setback for the Harbor Heights gas station building itself. The ZBA also entertained questions about whether or not the project constituted an expansion of a pre-existing, non-conforming use and if neighbors — namely the St. David’s African Methodist Episcopal (AME) Zion Church and neighbor Michael Butler — had the standing to appeal a decision by building inspector Tim Platt that the canopy should be viewed as an accessory structure, rather than a principal structure.

During a work session on Thursday, January 16, a majority of the ZBA agreed in a straw poll they would decline three of four variances the project needed to move forward. ZBA member Jennifer Ponzini was absent from the meeting, however with the rest of the board unanimous in their decision Ponzini’s vote could not alter the straw poll.

While the ZBA was originally scheduled to meet Tuesday, January 21 that meeting was cancelled due to a snowstorm. The decision will be formally read and voted on during the ZBA’s February 18 meeting, according to village attorney Denise Schoen.

The lone variance the board agreed they would allow is relief from a front yard set back requirement. The Harbor Heights proposal, in its most recent form, entailed reconstructing the existing gas station building in its current location, which would place a convenience store within a building just 15.6 feet from Hampton Street, where 50 feet are required under village code. As the building currently exists in the same proximity to Hampton Street, the ZBA felt it was not a detriment to the community.

“It’s not self created, I think, because the building is already there,” noted ZBA chairman Anton Hagen.

“It’s a substantial variance for the setback but because the building is already there, I don’t see any point in not using the area for the convenience store,” agreed board member Scott Baker.

However, the ZBA went on to vote against a variance that would allow Leonard to reduce the minimum landscape buffer around the edge of the property to under the 30 feet demanded in the village code. The project proposed landscape buffers, where none exist today, between 10.6 and 21 feet. Neighbors, including Butler, have protested that a full landscape buffer is necessary to protect their properties from being impacted.

“After going through the five considerations, I feel strongly a key way of protecting that neighborhood is to maintain those buffers,” said Hagen. “I think they are essential and the code asks for a certain amount of buffer and I don’t see a compelling reason why it shouldn’t be upheld.”

Hagen added that the project could be redesigned to allow for 30 feet of buffer around the whole of the property.

“I think the code is pretty clear and the code should be honored,” agreed board member Tim McGuire.

Schoen noted that the applicants can always come back to the village with a revised plan.

While the ZBA ruled it agreed with the method in which building inspector Tim Platt determined the size of the convenience store — proposed at 718 square-feet and excluding spaces like an ADA compliant bathroom, mechanical equipment and storage from its calculation — the board said in a straw poll it still felt the size of the convenience store should be limited to 600 square-feet, as laid out in the village code.

As village attorney Fred W. Thiele, Jr., who joined Schoen at the meeting, began to speak, Leonard’s attorney Dennis Downes stopped the proceedings, questioning whether Thiele had the right to represent the ZBA when he traditionally represents just the Sag Harbor Village Board of Trustees.

Thiele disagreed with Downes, noting he has actually represented the ZBA in proceedings regarding the Harbor Heights case, and continued to speak to the board, wondering what the square footage of the store would be if it was calculated using the definition of gross floor area — the interior of the building wall-to-wall. Under that calculation, the store would be over 900 square-feet.

Schoen noted that Platt allowed certain things to be eliminated from the square footage based on language in the code that reads the gross floor area “for the display of goods for public sale” should be considered. Platt took that to mean only in places where you could view or buy goods should square-footage count towards the store.

“I think they put that in there this way so we know how big the convenience store should be,” said Baker, noting the specificity of the language.

“The building inspector made, I would say, a logical interpretation,” he said.

The rest of the ZBA agreed, although it did vote against allowing the store to be 718 square-feet, asking the code be upheld at limiting the store size to 600 square-feet.

Because the board determined in its straw poll that it believed the size of the convenience store should be limited to 600 square-feet, Schoen said the last variance — to determine where the project was an intensification of a non-conforming use because, in part, of the size of the store — would be automatically denied by the ZBA. Board members agreed.

As to whether or not the project constituted an expansion of a pre-existing, non-conforming use, a majority of the board said it was primarily because the number of pumps — currently three including a diesel pump — was being expanded to four under the current proposal. If there were just three pumps proposed, agreed the majority, they would likely not see it this way.

Lastly, the board was unanimous in its belief that Rev. Ken Nelson with the AME Zion Church and neighbor Michael Butler did not have standing to challenge Platt’s determination that the proposed canopy was an accessory structure, rather than a principal structure. The reason, said the board, was because the appeal was not timely and was made literal years after Platt’s original 2011 decision.

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One Response to “Sag Harbor ZBA Nixes Most Variances for Harbor Heights Project”

  1. T. Barrett Stanley, RA says:

    I am concerned about several issues in this decision, as follows:
    1. How does the Building Inspector get to make a Zoning matter decision without the zoning board approval also. It appears that is what happened regarding the Canopy.
    2. How this can be considered anything other than an expansion of a non-conforming use does not make sense. If the explanation is that the code permits a gas station expansion to 600 SF, this was certainly not intended to apply to a non-conforming use.
    Further, adding a pump is an expansion but adding Square Footage is not?


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