Harbor Heights Comes Up Empty At ZBA

The plans to renovate the Harbor Heights Service Station in Sag Harbor, adding a convenience store and a single pump to the premises, will officially be sent back to the drawing board by the Sag Harbor Zoning Board of Appeals during their meeting scheduled for January 21.

During Thursday's special work session, a straw poll was taken among the four board members in attendance—newly appointed board member Jennifer Ponzini was absent—for each variance and determination the board is required to make on the application. With the exception of a single variance, the board unanimously ruled against the applicant, Petroleum Ventures LLC, on all fronts. Even if Ms. Ponzini were to vote against the board majority on all matters, the decision would stay the same.

The first denial of the night came in the form of a buffer variance. Village code requires a 30 foot landscaped buffer between a commercial property and a residential property, and Harbor Heights is in a residential neighborhood. The applicants wanted to reduce those buffers to 10.6 feet and 21 feet on each side in order to make room for more parking spaces.

I feel strongly that buffers and setbacks are a key means to protecting that neighborhood," ZBA chairman Anton Hagen said. "They are essential. I don't see any reason why the project couldn't be accomplished within the 30 foot buffers."

His thoughts were echoed by board members Tim McGuire and Brendan Skislock, before the board unanimously denied the variance request.

"They can come back with a request that is buffer compliant," Mr. Hagen concluded.

The next variance on the docket was also denied, but only after a brief moment of hope for the applicant.

At issue throughout the past three years of proceedings was whether or not the building inspector had correctly measured the gross floor area of the proposed convenience store.

The village code, revised in 2009 with the looming renovation of Harbor Heights in mind, limits the size of a convenience store to 600 square feet "for the display of goods for retail sale." According to the village building inspector, the planned store would sit at 718 square feet, needing a 118 square foot variance. But the opposition, namely the grassroots advocacy group Save Sag Harbor, contended that the store was in fact more than 900 square feet, because the building inspector excluded areas for mechanical equipment, utilities, storage and bathrooms.

The board ruled that the building inspector was correct in his assessment, because the code only limited the areas displaying goods to 600 square feet—only to turn around and uphold the importance of the 600 square foot rule and deny the extra 118 square feet desired.

"The record has convinced me that the 600 square feet should be held to," Mr. Hagen said. "The extra display area is a detriment to the community."

After the board agreed that the store should be limited to the size mandated by village code, village attorney Denise Schoen said the last variance, whether or not a special exception use (as the convenience store would be) could be intensified, became a moot point, and the board automatically denied the variance.

The lone variance the board approved was to allow the "front-yard setback" of the proposed convenience store to be 15.6 feet from Hampton Street where normally 50 feet would be required. The board unanimously ruled the variance wouldn't pose a detriment to the community because the new structure would be in the exact same spot, with the exact same footprint, as the current building.

"This is not a tear-down and rebuild but instead a renovation of an existing building," said Ms. Schoen.

"Because it is pre-existing, I feel comfortable granting this variance," Mr. Hagen said.

In addition to the variances, the board had to make two legal determinations.

First off, because the gas station is a pre-existing non-conforming use, the board had to decide whether or not the plan to add a pump and move the location of the pumps was an intensification. Throughout the years-long proceedings, there was discussion of a similar case, called Tartan Oil Corp. V. Board of Zoning Appeals, where the courts ruled in favor of Tartan. If the same court standard was applied, it would improve the odds for the Harbor Heights expansion.

But the board decided that the cases were in fact not identical, because unlike Tartan, Harbor Heights is looking to add a single pump—and they ruled against the application again, saying it would be an intensification.

The second legal determination—that an appeal by opponents Save Sag Harbor was too late to be considered—actually went in favor of the applicant, but was essentially rendered pointless by the previous rulings.

The attorney for the applicant, Dennis Downes, said after the work session that following the official ruling next Tuesday, he and his client, John Leonard, will have 30 days to either scale down their application and reapply for approval with the ZBA, or appeal the decision through a lawsuit. "I'm not going to speak for my client as to his intentions though without speaking to him first," Mr. Downes said.

Regardless of what Mr. Leonard and Mr. Downes decide to do, everyone involved fully expects this ruling to end up in the court system, as discussed at the work session by head village attorney Fred W. Thiele, Jr., who was sitting in on the highly-publicized meeting despite normally only attending village board of trustee meetings.

"When one side or another here sues, they will raise all the issues they have with how you ruled," Mr. Thiele said. "It doesn't cost them any extra, so they won't be nitpicking in the lawsuit. If I were the attorney challenging a denial, I'd challenge everything."

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