Attorney Michael White. HuntingtonNow photo
A Zoning Board of Appeals hearing last week involving the former Jellyfish restaurant in Centerport turned into a debate exclusively for lawyers.
ZBA chair Gerard Asher said that the sole point of the hearing was to address a complaint from attorney Darrin H. Berger that the board had previously ruled erroneously on the site at 44l East Main St.
Members of the public, many of whom showed up in matching t-shirts to express their opposition to changes in the property, were not allowed to address the board. Three lawyers–Berger, Michael McCarthy, who was representing the property developer, and Centerport environmental lawyer Michael White–were permitted to speak publicly.
“The misinformation surounding this property is legion,” Asher, a retired state Supreme Court justice, said at the beginning of the hearing. “At this time, right now, there is NO application pending for any purpose or use of 441 that has been filed with any agency of the town.”
The zoning board had decided in August on elements of what was called a pre-application submitted by development company RT 441 Owner LLC to turn the former restaurant in a mixed-use building with nine apartments. One decision involved the lifting of covenants that required valets to be available for parking, since the building was no longer going to be a restaurant, and the other involved continuing a special use permit for a business depth extension.
Berger, however, said the ZBA erred by not reviewing the property under the slope rules, as required for a depth extension, and that the application was advertised for a depth extension. Asher, as he has previously, said the language of the legal ad before the earlier decision was unclear.
Asher repeatedly pressed Berger to explain what he wanted the board to do when there was no application on the table. “What is your prayer for relief?” Asher asked. “What is your standing?”
Berger cited the need for steep slope assessment, and wanted the ZBA to direct the planning department “to issue a proper letter of denial encompassing any and all necessary relief.” He also said the ZBA needed to comply with New York State Environmental Quality Review Act, which requires government agencies to consider environmental impacts during decision making.
At one point Asher interrupted Berger to summon McCarthy, asking him to surrender the microphone for a moment, which he did reluctantly, and Asher again asked whether there was an application for any work at the site.
McCarthy replied simply “No.” and then returned the microphone to Berger before walking away.
Berger responded to questions from Asher by saying, “Let’s cut to the chase” and going through the chronology of actions on the property. When Asher asked another question, Berger said, “You can ‘Mr. Berger’ me until the end of time. Will you let me finish my remarks?” And added, “Everybody knows it’s a steep slope (issue) except for Mr. Chairman” to cheers from project opponents in the crowd.
And later said, “If we didn’t bring this, the skids would have been greased and this thing would have been in the process of development.”
To which Asher replied, “You can make as many pejorative statements as you like. But there’s nothing pending….”
White, who teaches environmental law, raised several issues, including saying that the ZBA had been given lead agency status under SEQRA, meaning it should have undertaken a coordinated review under SEQRA, as it is subject to decisions to be made by other involved agencies, such as, the Planning Board, the NYS Department of Transportation, the NYS Department of Environmental Conservation, the Suffolk County Department of Health Services, the Centerport Sewer District, and the Suffolk County Water Authority.
McCarthy, representing the RT 441 Owner LLC, repeated the statement that the owners had no plans pending, and said that when the plans were developed, they would not need to come before the ZBA because no variances would be required.
White said the steep-slope laws were designed to assess the impact of new building on drainage, aesthetics and other matters.
He praised White as a well-respected environmental attorney, but was critical of Berger. He said, it was “grotesquely irresonpsible of anyone to create a false sense of expectation that this board has something it can give them tonight. Because there’s not. The board doesn’t have jurisdiction.”
Opponents of the project, including supporters of the family of bald eagles that nest at the nearby Mill Dam Pond, cite parking, storm runoff, drainage, sewerage, traffic and overbuilding as some of their chief concerns.
The board took no action on the public hearing.