Town’s Proposed Special Exception Amendments Are Illegal, CVS Representatives Say

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Attorneys for the CVS-Caremark company, which has proposed opening a store in Bridgehampton, challenged a group of proposed amendments to Southampton Town’s special exception rules.

Proposed new requirements for market analysis and establishing a “need” for a use, as a requisite for receiving an exception to exceed the town’s 5,000-square-foot limit on stores in hamlet business districts, is an unfairly high bar to set, opponents said. They also called it ripe for corruption.

“The entire section F is illegal, you have absolutely no right to … require any sort of market study,” said attorney John Bennett, who is representing CVS before the Planning Board in its request for a special exception. “I simply don’t know why you would put in there something that has been talked about in abundant case law and found to be faulty. If adopted by this board it will represent legislation brought about by a vocal opposition, purely for political goals and an illegal exercise of your powers as the Town Board.”

But the amendments, which would also require detailed studies of the impact of a store exceeding the size limit on traffic and parking, are sorely needed for exceptions to a long-standing rule, town officials claimed.

Councilwoman Christine Scalera, also an attorney, said that case law on the requirement of market studies in planning considerations has said that such studies could not be the sole reason for denying an application, but that they could be considered as a contributing factor to a development’s potential impact. Mr. Bennett declared she was wrong in that interpretation.

Two other attorneys, Wayne Bruyn and Anthony Tohill, both representing the owners of the Bridgehampton property where CVS hopes to open its doors someday, also challenged the legality of the proposed code changes and the board’s claims of a broader base of concern than just CVS in proposing them.

“When I looked at this law, I was in shock,” said Mr. Bruyn, who handled the site plan application for the proposed building itself, five years ago. “It was local law number 26 of 1990 when this section of the zoning code regarding floor area was adopted by the town. What is the concern now? Nothing has happened since 1990. There’s nothing in the Bridgehampton hamlet study that says prohibit uses over 5,000 square feet. There’s nothing in this local law that identifies the harm that you are trying to prevent. You indicate that … they are large and oversized without definition. The standards have to be clear and attainable.”

Supervisor Anna Throne-Holst said that the proposed amendments were the latest step in an ongoing effort by the board to sharpen and improve its land-use regulations, one that started with its overhaul of the Planned Development District regulations in 2011. Ms. Throne-Holst and other town officials have been careful to say the law was directed at a broad improvement to the codes, and not specific to the CVS application, which would be illegal, though they have acknowledged that the much pilloried application is what cast the spotlight on the failures of the code to provide guidance on when exceptions to the size limits should be permitted.

“There are special exception uses in the code, but no specific standards,” Town Planning and Development Administrator Kyle Collins told the audience at Tuesday night’s public hearing on the proposed amendments, saying the requirement of additional studies regarding a specific application would provide important protections that simple specifications of types of uses wouldn’t. “Hamlet centers have different characteristics in terms of design, traffic impacts and land use mixes. That’s why it’s very important that these types of applications are reviewed with that specific character in mind.”

The lone other voice of doubt about the code revisions came from former town Supervisor Patrick Heaney, now the legislative director for the Southampton Business Alliance. While Mr. Heaney said he was not advocating for the infiltration of big box stores into the town’s small hamlets, he said he worried about the burdens, primarily financial, the proposed new amendments to the law might present to some small-business owners throughout the town.

He said that the additional expense of preparing a traffic study and market analysis for a small business looking to expand beyond the 5,000-square-foot maximum, or already exceeding it, could be cost-prohibitive.

He also said he worried that the market analysis component of the legislation could open up an avenue to the politicized regulation of competition.

“Some people may think this law is all about targeting one business in one hamlet,” he said. “I say they are wrong … it is about regulating competition all over.”

Residents of Bridgehampton, many wearing buttons with the letters “CVS” struck through, made few bones about the immediate impact they hoped the proposed amendments would have on the Planning Board’s review of the CVS application.

“The specter of a convenience store masquerading as a pharmacy operating at this location seven days a week, 15 hours a day, would create a quagmire of traffic,” resident Preston Phillips said. “And where will shoppers and rotating store staff park? CVS claims to have conducted traffic studies, but to what end? These findings should be shared … and be verified as realistic before any consideration is given to this specious application for a special exemption to a law designed specifically to avoid such an occurrence.”

Tuesday’s public hearing was left open for further comment.

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