123 Montauk Highway

A gas station was on this site, at least since 1955 when a certificate of occupany was issued for a service station (presumably the existing building).   The gas station use had stopped, and was lost, by 2000 when the property was bought by the current owner, 123 Montauk Highway LLC.  The principal of that LLC also owns gas stations and convenience stores in the center of East Moriches and elsewhere.  He has tried unsuccessfully to get approval for a gas station and convenience store here, as shown by a 2006 letter to him from the Planning Division.  He was told then that his location was at a "problematic intersection that has significant safety concerns", so he should try for a J-2 use, which includes "retail and office and other typical commercial uses".

Site Plan Application

In August 2008, the owner filed an application for approval of a site plan for a delicatessen and an environmental assessment form.  He did not opt for an office or other J-2 use with low traffic volume.  According to his site plan, he wants to add to the existing masonry building and have the entrance in about the center of the front boundary.  He submitted an image of what it would like. 

The County Department of Public Works commented in October 2008 that "the proposed access as indicated is very problematic due to its close proximity to the intersection of CR 51 and CR 80."  The Traffic Safety Division said that driveway access should be "as far west as possible" (meaning as far from the intersection as possible).  Then the owner was told by the Town that he needed variances from the ZBA to proceed at all.

ZBA's Variance Decision

The owner filed an application to the ZBA dated 9/3/09.  He sought variances for lot width (apparently due to the irregular shape of the lot) and for side yard setback.  The building is just 7' from the boundary, and it has to be 10' back in a J-2 zone and 25' back when it abuts residentially-zoned property (as it does).

This application raised significant issues because of the site's being on a busy, and unsafe, intersection.  Delicatessen's tend to have a high traffic volume.  Offices and other uses with lower traffic volume are also permitted in J-2 Business zones.  Concern over traffic was made worse by the owner's desire to use the existing building rather than locate a new building to allow access at the southern end. 

The ZBA started its hearing on December 16, 2008.  The ZBA's planner's comments recounted the traffic agencies' concerns about the proposed location of the driveway.  In their questions, members of the Board showed that they recognized the issues as well.

A letter in opposition to the application was read that recounted problems at the owner's gas station in the center of East Moriches.  Legislator Ed Romaine submitted a letter read at the hearing; he stated that "[t]he J-2 use for a deli is problematic because of the multiple ingress and egress traffic at this busy intersection."  EMPOA's letter stated that "because of the detriment granting it would have on the health, safety and welfare of the community" and because the 5 factors listed in the Town Code, it did not favor granting the variance.

Testimony showed that Suffolk County was studying traffic at the intersection.  As a result, the hearing was adjourned so that the ZBA's planner could find out the status of that study.  Testimony resumed on March 10.  The County had completed its study.  In a 2/16/10 letter, it stated that "access to this development should be located as far from the intersection as the property boundaries will permit".  Based on that, EMPOA argued that the side yard setback variance should be denied.

Further argument was by a 3/26/10 letter on behalf of the owner, a 3/20/10 EMPOA letter and a 3/31/10 letter for the owner.   In the last-mentioned letter, the owneris attorney stated,

"The applicant does not object to the Board stating that the access should be "as far from the intersection as the property boundaries will permit" (from the DEP letter), as this still allows the access issue to be dealt with through the site plan process"

On 5/19/10, the Board granted the lot width variance and denied the side yard setback variance, as shown by its 5/21/10 letter.

Site Plan Process Continues.

Despite the prior testimony and proceedings, the owner did not change his proposed site plan.  It was heard by the Planning Board on 11/22 and 12/20/10.  The Board was given a choice of two facades and is asked to approve 3 signs on this small parcel.

At the Planning Board's work session on 11/17/10, it was stated that the requested side yard setback variance was no longer necessary.  On 11/24/09, the Town Board had amended Section 85-372.B of the Town Code, effective 12/8/09, to read as follows:

"(2) Additions to existing buildings and structures with certificates of occupancy in conformance with the zoning requirements at the time of construction shall be permitted, provided that said additions do not encroach deeper into any nonconforming front yard, side yard or rear yard than the distance into said front yard, side yard or rear yard that the existing foundation encroaches, exclusive of stoops, porches or patios."

Because the proposed addition would not extend any further into the side yard setback than the existing foundation, the conclusion was drawn that the addition no longer needed a side yard setback variance.  This conclusion was challenged during the hearings.

The Town's Planning staff has submitted recommendations for approval of the site plan.

Decision.

On 1/10/11, the Planning Board ruled on the application.  Board member Doug Dittko made a motion to disapprove the application with the ingress and egress where proposed by the applicant.

Dittko stated that he thought the applicant could achieve its goal of having a deli, maybe using a portion of the existing building, moving ingress/egress all the way to the southwest of the property.  He wanted to see the property developed because it is an eyesore as it is.  It is the Board's job, he said, to make sure that it is the safest place for ingress and egress.  He said he wanted a redesign of the site plan to relocate ingress/egress.

On the motion to deny, the vote was 4 in favor, 2 against and 1 abstention.  A letter dated 1/26/11 advised the applicant of the decision.

Litigation.

Within a month, applicant sued the Planning Board over its decision by filing a conclusory Petition.  The Board entered into a quick settlement and the Court so-odered the Settlement Stipulation on 3/23/11.  It called for approval of the site plan as proposed, with access at the center of the site's frontage, but with a number of conditions.  One was that "[f]inal access location and design shall be subject to an SCDPW Highway Work Permit" (emphasis added).

The Planning Board approved the site plan with the conditions at its 3/14/11 meeting, and applicant was so advised in a 4/1/11 letter.

DPW holds firm.

Applicant sought a work permit from Suffolk County DPW.  EMPOA submitted a 4/26/11 letter urging the DPW not issue a work permit for the center of the frontage.  In an email, Legislator Romaine asked that access to the site be as far from the intersection as possible.  DPW agreed to stick to its earlier position and locate access as far as possible from the intersection, as shown by it 5/11/11 letter to EMPOA.

New Site Plan Application

Applicant filed a new application with the Planning Board on 10/31/11.  The current revised site plan shows access at the southern end of the site as DPW had insisted.  This access location meant that the driveway had to go where part of the building was.  Rather than re-designing the layout to best utilize the new location of access, applicant's plan shows the part of the building nearer to the street being demolished and an addition to its other end.  The parking area now extends into the required buffer on the north side of the site so that a variance would be required to accommodate the plan.

Hearing 3/12 and 3/26/12

The Planning Board heard arguments on this application on March 12 and 26.  EMPOA submitted objections prior to the first hearing, and submitted additional information prior to the continued hearing and images at it.

The Board approved the application with certain conditions as reflected in the Chairman's letter to applicant.  The image of the proposed building submitted by applicant was also approved by the Board:

Click image for a larger image and all sides of the building.