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Lawsuit: Commack Hess Illegally Zoned; More Study Necessary

Gasoline Heaven and four Commack residents filed a lawsuit against the Smithtown Town Board for their decision to approve Hess's plans.

A Commack business and four residents have filed a joint lawsuit against the Smithtown Town Board for its decision to allow Hess to build a new gas station in Commack. 

The plaintiffs want that allows Hess Corporation to build a 12-pump Hess Express with a 1,231-square-foot convenience store, to be annulled. 

Town officials approved a zoning change from whole sale industrial, professional business and residential zoning to neighborhood business for Hess. Also named as defendants in the lawsuit are the Hess Corporation, L.M.I Commack Realty and Fayland Realty. 

Gasoline Heaven and the four residents - Jonathan and Kathy Bacchi, Edward and Janice Fiorvanti - argue town officials failed to take a hard look at the environmental impact it would have as required under New York State Environmental Quality Review Act, often referred to as SEQRA. 

On page 13 of the filed complaint reads:

The Town Board's approve of the 2011 Application is arbitrary, capricious and incorrect as a matter of law because the Town Board abused its discretion in adopting a negative declaration without first requiring that Defendants prepare an Environmental Impact Statement relative to the proposed use and impacts it will have on the community. 

The plaintiffs point out at the five-way intersection including Harned Road and Jericho Turnpike. 

One piece of evidence pointed to is a study done by New York State Department of Transportation in 2009 - the same year when Hess's first application to build a gas station was denied by Smithtown officials.

DOT's study in March 2009 found that the five-way intersection averaged 20.4 accidents per year when the former gas station was open. That number dropped to 13.2 accidents per year once when the former gas station closed in 2002, according to the lawsuit. 

This study formed one of the reasons Smithtown denied Hess Corporation's application to build the gas station on June 25, 2009 as it "would generate traffic congestion and traffic accidents in this busy five-way intersection, and would be a detriment to the community," according to page 11 of the lawsuit. 

Also, Smithtown Town Board did not require Hess to do an Environmental Impact Statement, and the town didn't do their own independent study like they did in 2009. 

Gasoline Heaven and the four residents also argue Smithtown Town Board's decision to let Hess build should be overturned as officials didn't offer any reason why they approved the building plans now, but not in 2009. 

Hess Corporation's plans for the gas stations from 2009 to 2011 only contain one signficant difference: the plans for the Hess Express called for a shared driveway to be built and shared with adjacent properties including and . 

The four homeowners who who have signed onto the lawsuit, the Bacchis and Fiorvantis, all live on Smiths Lane - a residential block that runs parallel to Harned Road. Their backyards would abut this new driveway. 

Lastly, the lawsuit claims that Smithtown officials engaged in illegal spot zoning by approving the Hess's plans to build.

On page 15 of the lawsuit reads: 

It is the Plaintiff's position that the rezoning of the premises to NB [neighborhood business] was approved for the sole benefit of the defendents Hess Corporation, L.M.I. Commack Realty and Fayland Realty at the expense of the general welfare of the community, defendent Town Board engaged in illegal spot zoning. 

The reason given in the lawsuit is that changing the 0.77 acres on the corner of Harned Road and Jericho Turnpike to neighborhood business zoning doesn't match Town of Smithtown's Comprehensive Plan Update, a plan specific about the future of Route 25 development. The Comprehensive Plan Update, adopted in August 2011, calls for limited commercial expansion. 

Both parties and the attorneys on this lawsuit are due in appear in Suffolk County Supreme Court before Judge Ralph Gazzillo on Sept. 27.

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Jimmy Bones September 18, 2012 at 10:32 PM
BV- You forgot to mention that Rudi is worried about safety at the corner.That's why he's sueing the town he's made his millions off of!
Allen September 19, 2012 at 01:42 PM
You can do all that at the HESS by home depot ! And you can save the the credit card SURCHARGE gasoline heaven charges. You also wont have to lend your financial support to a greedy person trying to stifle competition by suing the town which is costing the taxpayers money to defend. There was a gas station on that corner for years, the only one concerned if it is 4,8 or 12 pumps is you guessed it RUDY. Sure he would be fighting the town if a 99 cent car wash wanted to open there.
GB September 19, 2012 at 04:37 PM
Your scenarios have already played out...Home depot opened up on jericho and several small businesses went out. That's how America works. Home depot didn't put these businesses out, the people who stopped going to the little guys to shop and instead went to home depot put them out. Did they all sue the town to stop the competition? No. All we can hope for is that Rudy spends hundreds of thousands to fight the town and then loses just for this slimy tactic. Pretty sure the gas retailer assoc. that showed up at the town meeting is helping with the legal fees. And remember, its about traffic not competition to Rudy, so he flip flops, so just buy your gas anywhere but Gas Heaven to show you don't support cronyism.
Terry September 22, 2012 at 07:56 PM
I have been passing Gasoline Heaven coming off the Sag on the way home the last few days and see it empty while the Hess is full. Good Job Commack, keep it up!!
Vic October 08, 2012 at 02:21 AM
I now go to HESS because of this lawsuit

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