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This property is located on the west side of the Montauk Highway between Woodlawn Avenue ane the railroad trestle.

Original application, approved 2009

At a 2007 EMPOA general meeting, Timeless Homes presented a plan for this site that called for closing the east end of Railroad Avenue. It applied for site plan approval in Fall 2007. EMPOA commented on the plans in a 5/13/08 letter. The property was sold to DNF Realty, Inc., and its representative responded to the points in EMPOA's letter in a 4/16/09 letter.

Applicant's 7/31/09 site plan was heard by the Planning Board in August 2009. It did not call for closing Railroad Avenue. The proposal was for 6 office/retail units in a 6,750 sq. ft. one-story building. The plans say that about 2/3 will be for non-medical office space and the rest will be for retail. 47 parking spaces are provided. 34% of the 1 acre lot is to be paved. Some areas are to remain natural, and plantings are proposed for other areas

Immediately below is applicant's rendering of how the building will look. It does not show the parking lot in front of the building or and landscaping. The trees behind the building in the image are taller than those now in place.

For a larger image, click here.

EMPOA commented again on the plans in its 8/7/09 letter and in its 8/24/09 letter. The Board's decision approving the plan was in its letter dated 10/5/09. There were several subsequent changes incorporated into the final approved site plan.

HDAC Facade Approval, February 2011

The site is within the East Moriches Historic District, so it needed review by the Historic District Advisory Committee. The Committee approved the plan elevations (with a façade close to that in the image above) in February 2011 subject to several conditions requiring the submission of additional information.

Revisions to Close Railroad Avenue, 2011

It has been reported to us that after the final site plan was approved, the developer took it to Suffolk County DPW to get its clearance. It learned that DPW intended to close the east end of Railroad Avenue in front of this site and required access to be directly from the Montauk Highway at the south end of the site. Staff from various Town departments met to address this, and concluded, as reported in a 6/2/11 memo by the then Director of the Planning Division, that "Suffolk County controls all access to Montauk Highway (including existing paved portion of travelway within County ROW". The decision to close the road was then confirmed by a 6/6/11 letter from Brookhaven's Highway Department.

The developer has incorporated the proposed change in a new site plan dated 9/6/11. The Planning Board held a hearing on 9/26. A nearby resident spoke for himself and his neighbors, objecting to the proposed change because of the inconvenience it would cause him, his neighbors and nearby businesses. EMPOA had submitted a letter, and at the hearing asked for 30 days to talk with DPW and try and work something out. It also offered an alternative way of addressing what might be DPW's concerns (see Exhibit C to its letter). Legislator Ed Romaine submitted an email asking for an adjournment to allow for investigation of DPW's concerns and possible alternatives.

The Planning Board agreed to give DPW, if not others, 30 days to submit written comments.

Apparently no one was delegated to contact DPW, and it did not submit anything to the Planning Board within 30 days. Prior to the next Planning Board meeting on 11/7/11, Legislator Schneiderman submitted a request to the Planning's Chairman that the record be reopened and that no decision be made pending a meeting of DPW with the community. At the meeting, EMPOA reiterated the Legislator's request. Nonetheless, the Planning Board approved the revised plan with conditions at that meeting, as reported in the Chairman's 12/5/11 letter.

One of the conditions of approval was that "[f]inal access location and design shall be subject to a SCDPW Highway Work Permit". This meant that DPW can say where access to the property shall be and, consequently, whether there is a need for closing the east end of Railroad Avenue. It was to be the County, in any event, that would determine whether to close the east end of Railroad Avenue.

Public Meeting, December 2011

The condition caught the attention of our County Legislators Romaine and Schneiderman. Legislator Schneiderman is the Chairman of the County Legislature's Public Works and Transportation Committee. He has decided that the public ought to have input into the possible road closing, and has asked DPW to attend EMPOA's 12/7/11 general meeting to hear what the public thinks.

Legislator Schneiderman, Legislator Romaine and Councilman Panico, the Chairman of the Planning Board and other government personnel attended the meeting, along with many resident. The public's sentiment was strongly against closing Railroad Avenue. The Legislators were supportive.

The meeting concluded with statements that DPW would discuss keeping Railroad Avenue open with the developer. That proved to be meaningless.

Permits issued, early 2012

On 1/6/12, unbeknownst to the community, Brookhaven's Highway Department issued a permit for DNF's project. It was to create the new turn-around at the new terminus of Railroad Avenue and repave.

On 1/23/12, the DPW Commissioner wrote Legislator Schneiderman stating that a meeting had been held on 1/5/12 with Brookhaven's Highway Department and that DPW would issue its permit. Its permit was issued on 2/9/12, and authorized the highway "improvements" shown on the approved plan.

Resolution to block filed and withdrawn, February-March 2013

Legislator Schneiderman introduced a resolution in the County Legislature on 2/7/12 to block Railroad Avenue's closing, and got an article in Newsday for it. But he withdrew the resolution on 3/6/12.

Final approval, July 2012

On 7/19/12, the Planning Board Chairman gave his approval to the plan. This plan, unless subsequently amended, describes what the Board approved.

div style="background-color:rgb(255,255,255)">Further efforts . . . to no avail, 2012-13<

EMPOA communicated with DPW and Town officials in an effort to block the closing. The County's position was quite clear. A DPW official wrote the following in a 10/10/12 email:

"As you all recall and as was discussed at length, Suffolk County DPW has no authority to close a roadway. The Town of Brookhaven approved a site plan that closed the roadway. After the meeting at the Fire Department the Town of Brookhaven made a decision to not re-open the site plan approval. Therefore, the developer moved forward with the approved plan. "

The Town, on the other hand, said in a 1/13/13 email that the County closed the road:

"The claim that the Town road was dosed is not accurate. The Town road had an end at the point at which the County road/ROW began The Town road always ended in the same place [that is, before the first curve]. There may not have been a barricade or other obstruction between the two roads at the time, but the Town road did in fact end. As the County is requiring their portion to be removed, we need to provide a safe manner in which to indicate to vehicular traffic that the County road no longer exists."

A search for a provision in the State's Highway Law or the Town Code has revealed no applicable provision for the Town to close the end of Railroad Avenue. The Town has been asked for such a provision, but the officials asked did not identify any such provision. On the other hand, the following provisions of law seemed relevant:

Town highways "are those constructed, improved or maintained by the town with the aid of the state or county, under the provisions of this chapter" (Highway Law §3(5). It seems undisputed that the Town consistently maintained the entirely of Railroad Avenue. A road's being a Town highway may also be established in other ways. Pertinent here is Highway Law, Section 189:

"All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway."

So all of Railroad Avenue seemed to have been a "Town Highway". Under Highway Law, Section 14(2), the Superintendent of Highways is obligated to cause all highways to be kept in repair. That must include keeping open those he is not authorized to close.

The Superintendent is allowed to realign roadways. EMPOA proposed a realignment to the Planning Board, and subsequently to other officials, that would keep the road open and improve the intersection from what it was. It can still be implemented.

click here for larger image

Railroad Avenue Closed; Construction starts, late 2012 into 2013

In September 2012, a building permit was issued allowing the developer to start and complete a shell of a building. Within a month, signs went up announcing the closing of the east end of Railroad Avenue and it was ripped up in October. Work on the foundation was underway in February 2013.

Click on images for larger view.

Application to Un-landbank Parking Stalls, May 2013

The developers approved plan called for 8 parking spaces to be landbanked, that is, shown on the plans but not actually constructed. They would be landscaped over, but available with Planning Board approval sometime in the future if a need were shown. On 5/1/13, applicant submitted a letter requesting that, even though it had barely started construction, it be allowed to construct the landbanked parking spaces. It gave no reason except perhaps by saying that it was talking with potential tenants.

EMPOA submitted a letter explaining that the application should not be granted given the lack of demonstrated need and for other reasons.

Without comment or question, the Board approved the application.

Request for a sign setback variance, July 2013

In the 2009 approved plan (the one with Railroad Avenue open), the sign was located just south of the access roadway, 10' back from the front lot line. As shown by a new plan, the developer now wants the sign 10' north of the access roadway, perpendicular to it and right on the lot line. Its application to the ZBA for a variance from the 17' required setback.

This application does not describe what the sign would look like. It only says that the sign will be within certain dimensions—no more than 12' high and no more than 32 square feet. These are the maximum dimensions permitted for a sign in a J2 district. We believe the sign will have to be reviewed by the HDAC and be included in an amended site plan.

On July 24, the ZBA granted the application to the extent of permitting only a 3' setback from the Montauk Highway for the sign.

Application to permit a convenience store, July 2013

On 7/9/13, the developer filed an application to amend the site plan to include a convenience store in the southern 2,500 square feet of the building; the application was accompanied by a full EAF and elevations and floor plans were filed shortly thereafter. Because more parking spaces are required for a convenience store, it wants to have spaces on Railroad Avenue.

A convenience store is defined as

"A retail establishment which sells food and beverages, prepackaged or packaged within the establishment and in a ready to consume state and also sells newspapers, magazines and other sundries of a convenience nature, and which is open seven days per week, at least 12 hours per day." Town Code § 85-1 (emphasis added).

A convenience store is allowed in the J2 district, but only with a special permit from the Planning Board. To grant a special permit the Planning Board must make some specific determinations:

"A. As provided by this chapter, special permits from the Planning Board shall be granted only where said Board shall determine:

(1) That the use will not prevent the orderly and reasonable use of adjacent proportion or of properties in the surrounding area or impair the value thereof.

(2) That the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent districts.

(3) That the safety, health, welfare, comfort, convenience or order of the Town will not be adversely affected by the proposed use and its location.

(4) That the use will be in harmony with and promote the general purposes and intent of this chapter." Town Code §85-51.

In subsection B, this section of the Town Code outlines even more details of what the Board must consider.

In addition, there are special requirements for convenience stores in shopping centers:

"(a) Unless otherwise required by a previous site plan approval, a dumpster enclosure for one dumpster for rubbish, as well as one dumpster for cardboard recycling, unless adequate space for cardboard recycling storage can be demonstrated by the applicant within the convenience store. The dumpster enclosure shall consist of walls measuring eight feet in height, which complements the building facade.

(b) Outdoor sales, storage and display of goods shall be prohibited.

(c) Neon lights in windows shall be prohibited.

(d) Waste receptacles for customer use shall be provided and maintained on site.

(e) A maintenance plan for management of litter and general upkeep of the premises.

[In connection with the next subsection, note that the site is reported to be 50,163 sq. ft. or 1.152 acres. ]

(f) The minimum lot size shall be 65,000 square feet unless the Planning Board, in its discretion and upon a finding of compliance with the criteria set forth in Subsection L(1)(a) through (h) above and Article VIA, § 85-51 [see above], may approve a smaller lot size of no less than 0.75 acre. In considering a lot size smaller than 65,000 square feet, the Planning Board shall impose the following conditions:

[1] Prohibitions against deliveries by tractor trailer;

[2] Adequate area for traffic circulation;

[3] Any such other conditions as the Board determines will protect neighboring properties and enhance community character, including architectural design and enhancements thereto." Town Code § 85-227.1 (emphasis added).

Comments received by the Planning Division from other Town and County agencies have raised no issues (see comments from the Environmental Protection Division, County DPW, County Planning, Highway Department, Traffic Safety). The owner, however, thought that Planning staff was not moving fast enough and asked the Commissioner to intervene in a 10/3/13 letter.

On 12/4/13, the owner filed a revised site plan in an effort to show compliance with many requirements of the Town Code for a convenience store. In the transmittal letter, he again asked for a hearing as soon as possible. Responding the Planning staff comments, such as its 12/12/13 comment letter, 2 more revisions were filed, the last being a revised site plan dated 12/17/13.

As a result of the revisions, many non-compliances with Town Code were eliminated. The main issues left are lot size and the number of parking spaces. The Planning Board has discretion to reduce these requirements should it be persuaded to exercise such discretion.

Convenience store application withdrawn, January 2014.

The idea of a convenience store at this location caused a stir within the community. A petition against a convenience store such as 7-Elelven on the Montauk Highway was signed by over 400 residents.

The Planning Staff submitted a report to the Planning Board dated December 23, 2013, recommending denial. The Traffic Safety Division provided additional comments on 1/8/14. Among them was the need for a Traffic Impact Assessment that addressed analyzed additional traffic, the stop line sight distance and nearby accidents. On January 24, 2014, the owner asked by letter that the application be off the calendar until it could collect information being requested by Town agencies. On January 27, the Planning Board decided to treat the application as withdrawn.

Landscaping and other issues raised, July 2014.

The owner asked for guidance from the Planning Board on 2 changes to its plans, resulting in a discussion at the Planning Board’s July 9 worksession.

EMPOA submitted comments to the Board on 7/8/14, asking that no new rear door be allowed without a covenant that the rear door would not be used for regular access to the rental spaces and also alerting the Board to the fact that vegetated areas that the approved site plan required be undisturbed has been bulldozed, especially along the west boundary adjacent to residences. EMPOA also submitted photographs which staff used during the discussion.

During the discussion, a number of changes from the site plan were noted by staff, and so the Board decided that the full application should be submitted, including plans for revegetating the areas that were not to be disturbed. EMPOA raise objections in an 8/3/14 letter. The application was heard on 8/4/14 and placed on the decision calendar. Planning staff recommendedapproval but with several changes EMPOA had urged. It was approved at the 8/18/14 meeting and elevations showing the location of the exterior staircase were given final approval the same day. Applicant was advised of the approval and conditions by letter shortly thereafter.

The shopping center opens, November 2014.

In November, a final survey was submitted and approved, and the Planning Department cleared the project for a Certificate of Occupancy. Byu then, a florist moved in, followed by a hair salon and a hot yoga facility. The south wing of the building (2,600 sq.ft.) has remained empty despite its being listed for rent and a sign being posted on the front of the property early in 2015.

Press for a convenience store continues, August 2014 onward.

In response to Traffic Safety's request for a traffic study, applicant submitted a Traffic Assessment dated July 2007 addressing the requested issues. Not surprisingly, it concluded:

"Based on the results of our assessment, it can be concluded that the proposed convenience store will not result in any adverse traffic impacts from either a capacity or safety standpoint. The majority of traffic associated with the proposed convenience store will consist of vehicles already on the roadway and is not expected to result in any congestion related concerns. Vehicles will be able to enter and exit the site safely and will not be subject to excessive delays."

The photos in Appendix D, however, demonstrate the problem of cars disappearing in the dip under the trestle that knowledgeable residents have identified for years.

On 10/8/14, Traffic Safety submitted a brief critique of applicant's Traffic Assessment. It pointed to an inaccuracy in the road capacity analysis, a false assumption that traffic would be moving at the 35 mph speed limit, a private owners' inability to street parking spaces to meet the required number of spaces, and the fact that the street spaces are undersized.

On 10/9/14, applicant by letter requested an immediate hearing on its application. However, little happened as a result. At the end of the year, a response to criticisms of the Traffic Assessment was submitted. The response minimizes Traffic Safety's first 2 comments. It said the inaccuracy mentioned made no difference in the result of the capacity analysis and the sight distances were enough for higher speed traffic. In response to the third comment, it revised its site plan to put 45 spaces on-site plus 10 spaces on Railroad Avenue. (EMPOA has not yet seen the revised site plan.)

The owner filed an amended site plan 1/6/15. The principal change was the addition of parking spaces at the end of Railroad Avenue. There would be 5 spaces on either side of the road, necessitating widening of the roadway, moving a utility pole and an underground drainage structure.

Brookhaven's Highway Department has very critical of the proposal, pointing out in a 1/28/15 memo that the proposed parking spaces closest to the LIRR were too close to be allowed and that the plan submitted was missing significant information as to what was being proposed.

On 2/6/15, DNF requested that a hearing be scheduled on its site plan as amended 1/6/15.