Attorney Kevin Walsh of Spellman & Walsh, LLP, a firm with offices on Seventh Street in Garden City, spoke on behalf of McDonald's Service Station, Inc., located at Main Street and Meadow Place within the Village, which is currently applying for a special permit to allow the sale of convenience items, at the March 23 hearing on the matter before the Village Board of Zoning Appeals. Also at the hearing, several residents expressed their views on the issue and letters from the EPOA, New York State Senator Kemp Hannon, writing as a resident of the Village, rather than a public official, and landscape architect William B. Kuhl, FASLA with an accompanying memo from Steven Dubner Landscaping, Inc. were presented and entered into evidence. Now the case for this special permit awaits a decision from the Zoning Board of Appeals and the site plans require approval from the Board of Trustees and the Architectural Design Review Board. It was indicated that the Zoning Board would delay making a decision until the matter was brought before the trustees and the ADRB.

The EPOA had previously conducted its own investigation of the issue, inviting residents to examine the case from a supportive position, a neutral position, and an opposing position. Roger Eltringham was appointed to examine the issue from a favorable position, while John Rieger was to study the matter from a neutral position and Bronwyn Hannon (wife of State Senator Hannon) was to take up the opposition's case in reviewing the issue. Sue Schoelle, a resident of Franklin Court West, had begun passing out petitions against the granting of a special permit prior to the presentation of each of the positions before the EPOA. She was then invited by the EPOA to also present a case of opposition in addition to that of Bronwyn Hannon when the property owners' association held its own meeting on the matter.

Several residents called the EPOA during the period of investigation into the matter to express their support of the special permit explaining that they felt that the sale of convenience items so close to home would be a quick and easy way to pick up items on an immediate need basis, tiding them over until they could make a trip to the supermarket. Many residents reported to the EPOA that they found owner Mr. McDonald and his family very responsible business owners, who care for their property very carefully. Others said they felt confident that if certain restrictions were placed upon the operation of the market it would pose no problems to the neighborhood. At the same time, the EPOA was aware that approximately 96 signatures were obtained by Sue Schoelle in opposition to the proposal and many residents had serious concerns about its close proximity to their homes.

When the EPOA held its meetings at which time the three sides of the argument were to present their cases, Eltringham, Rieger, and Hannon all concluded that they could support the special permit if strict covenants were placed upon the operation of the store. Schoelle was invited to speak, at which time she stated on the record before the EPOA Board her willingness, even if reluctant, to support the conclusions of the EPOA investigators of the matter.

EPOA President Eileen C. Murphy then drafted a letter dated March 19 and sent it to the attention of Zoning Board of Appeals Chairman Robert Cunningham stating that the EPOA "supports the requested permit on the condition that sufficient restrictions are placed on the proposed activity, which would satisfy the reasonable concerns of the surrounding neighbors. In our view, the restrictions should be reasonable in nature and permanent in duration. It is our understanding that a restrictive covenant could achieve this result." The EPOA listed the following restrictions: "limit the hours of operation; prohibit the sale of alcohol; prohibit public pay phones; and restrict the sale of general categories of food products ( e.g. no fast food, no sale of open perishable food products, etc.)."

Kemp Hannon in his letter explained some of the concerns of the residents included issues such as loitering, "illegal trafficking through the use of public payphones" and that "a successive leaseholder would evolve the property into the style and substance of a fast food 7-11 type of establishment." In response to these concerns, he suggested "the requirement of a restrictive deed covenant," as he felt McDonald's offer of a 3-year "reviewability clause" could be "easily overturned in a suit against the Village by a future leaseholder."

Hannon explained, "A restrictive covenant would be binding and durable, running with the lease. It should restrict hours; prohibit alcohol; prohibit pay phones; prohibit loitering and restrict the sale of food to pre-packaged items only and not to the sale of perishable food products that are typically sold in fast food restaurants and delicatessens."

At the Village Zoning Board of Appeals hearing, Sue Schoelle recanted her statements made at the EPOA meeting and spoke against the special permit. She exclaimed, "I'm not here for myself; I'm here for my neighbors!" She claimed that crime is up 37 percent in the Village of Hempstead, a figure which is considered "grossly exaggerated" by a spokesman for the Village of Hempstead. Schoelle also claimed that the location of the proposed market would attract "drug dealers, prostitutes, and robbers to the area." She noted, "Not that we don't have guns and drugs in this Village, but I don't think we have to draw this kind of action into the community."

She argued that the regulations recommended by the EPOA were unrealistic, stating that she has witnessed the routine violation of Village laws throughout the community. She argued that the Garden City Police Department has been uncooperative in filing reports and sees this as additional work for the GCPD that it will be unwilling and unable to address. She began discussing allegations of communicating with Village youth against a man she identified as a known child molestor who had been living in Hempstead and his past habitual loitering in the area and time spent at the Garden City Public Library apparently to imply that the market would attract more criminals to the area and this would put an unnecessary burden on the surrounding community.

Gerard Whelan asked, "Why should I be expected to bear the burden of the complete unknown?" He argued that because the special permit would be carried from owner to owner of the property that someday a less responsible owner than McDonald might allow the market to become a hazard to the community. He concluded, "I don't think I have to bear the burden of not knowing what will become of a variance."

Jean and Anthony Early each spoke claiming that they would not have purchased their home near the service station if there were a market located there, which makes them question what impact this will have on the market value of their home. Also, they noted that litter from food wrappers could become a problem. Anthony Early also criticized the EPOA for not going door to door throughout the area and polling the residents.

Russell Josephs also spoke, adding that he was disappointed that he was not personally called by the EPOA, despite having given his number to the EPOA at an earlier meeting of the Zoning Board of Appeals. Josephs also said that while he has respect for McDonald, he is concerned that homeless people will be attracted to the market to redeem soda cans. He argued that Meadow Street will become a two-way street through violations of the one way signs there now.

William O'Dell commented that the landscaping trucks already park in front of his home and workers waiting to be picked up for their day's labor often congregate in front of his home. He expressed that he sees the market as presenting a loitering hazard, but as he testified that the workers are already there, the connection between the market and the workers was unclear. He also expressed concern about vermin being attracted to the market despite the assurances that no food would be prepared on site.

Frank Dopman stated that as a former criminal justice system employee, his concern is that the alleged dangerous criminals attracted to the courts in Hempstead will find this an attractive spot. He said that this will also attract teenagers and encourage them to loiter, putting them in danger as they mingle there with the aforementioned criminal element. George Sanders commented that as an employee of the Village of Hempstead, he is aware of three or four youth gangs in Hempstead who may be attracted to the market as a place to congregate. He added that he had lived in Hempstead in what was once "a nice neighborhood until a convenience store opened."

William Wierbicki asked the Board, "Would you want this a block away from your front door?" Sally Petrosovics noted that she did not think that this was what A.T. Stewart had intended and that she believed he would not like to see a convenience store in the Village. Stu Greenberg, owner of Seventh Street Stationery, commented that he felt "anyone here would agree that there's no need for this type of business" and added that this would set "a very bad precedent."

Almost all of the residents who spoke commented that the Mobile Station by McDonald's Service Station would follow suit and apply for a special permit as well, which would open a "Pandora's Box," as Josephs commented. Chairman Cunningham, in response to these comments, announced for the edification of the audience that in fact the Mobil Station already has such a market at its present location, without the level of restrictive covenants to which McDonald has volunteered to agree. This news was met with gasps of shock and surprise from the audience who were all clearly unaware that such a market already was located within the Village, thus helping the case that the market would not create a noticeable difference in the community.

Not mentioned at this meeting, but a factor in the alfresco dining issue of years past before the Village Board of Trustees, was the fact that the Texaco Station located on the corner of Seventh Street and Franklin Avenue, in the center of what's been frequently called the heart of Garden City's business district, sells food items. The point raised at that time was that in the language of the law (which passed) to allow dining on the sidewalks outside restaurants would allow any food establishment to put tables in front of their business. Texaco was mentioned because some trustees were concerned that because the station sold food, that it would then be allowed to participate in alfresco dining.

Attorney Kevin Walsh was able to rebut the arguments made by the residents. He claimed that the petitions signed by residents would not have been signed by so many if the market were not presented with what he described as misinformation. According to Walsh, the accompanying notice stated that the market would be open 24 hours a day and would sell alcohol and this led many to sign, without full understanding of what was proposed. He then cited the proposed landscaping to shield the market from view of the residents as addressing concerns about the appearance of the structure and also noted the architectural design and his belief that residents would find it appealing visually.

Steven Dubner Landscaping, Inc. has proposed two Japanese Pagoda Trees, four Washington Hawthorns, 32 Dark American Arborvitaes, 61 Cotoneasters, 42 Blue Princess Hollys, 17 Leatherleaf Viburnums, 18 Inkberries, 608 Daylily Mixes, and 859 Vincas for the greenbelt and other Village property surrounding the site. McDonald is proposing to furnish and install all of these plants through Dubner, while maintenance would be the responsibility of the Village. The maintenance costs are listed by Kuhl as $1,080 a year, plus another $1,00o to remulching and refertilizing as needed. Village Arborist Mike Didyck has not yet spoken with Kuhl about the plans.

Walsh also argued in a memo to the Board, "Thus, under the Zoning Code there is no specific limitation on accessory uses for automobile service stations. Had the Village intended to impose such limitations on automobile service stations it could have easily done so. This has been done in some municipalities. For example, in the Town of Huntington, the zoning law restricts accessory uses for service stations to the sale of oil related products."

Walsh continued, "As the courts have always held, in construing a zoning regulation, the issue is not whether the use is permissible, but rather whether it is prohibited. This is because zoning ordinances are in derogation of common law rights and are to be strictly construed so as to not place any greater interferences upon the free use of the land than is absolutely required. Accordingly, any ambiguity in zoning ordinances must be resolved in the favor of the property owner."

He concluded after citing the 1997 Supplement to Anderson on New York Zoning Law and Practice, Third Edition, §14:14 and the Village's Zoning Code, as well as other cases helping to define special permits, "Thus, McDonald maintains he has an absolute right to sell convenience store items at his existing building, but requires a further permit to expand the building. For the above reasons, McDonald's application should be granted."

The hearing was concluded, and now the Zoning Board of Appeals must render its decision, but as was mentioned earlier, it will likely await responses from the Board of Trustees and the Architectural Design Review Board regarding the site plans before making a decision.