The Amerada Hess Corporation was issued its first summons, on Feb. 26, about the sale of beer in its newly opened mini-mart on Lexington Avenue and Pine Hollow Road. The summons was returnable on March 31 at the 4th District Court in Hicksville. That began a story, the most recent installment of which took place on Aug. 5 at a town hall hearing. At issue are the covenants and restrictions (C&Rs) signed by Amerada Hess stating that among other things, they had agreed not to sell beer in their new convenience store.

The case recently appeared before NYS Supreme Court Judge Dana Winslow who said in his decision that, "The town was precluded in deciding where alcohol could be sold by the state," explained a town spokesperson. The case was then sent back to the town board by Judge Winslow who said Amerada Hess had to come back to the board in order to get the restrictive covenant rescinded. At the Aug. 5 meeting Oyster Bay Town Supervisor John Venditto made it clear that he believed that order would be answered by the courts: that the town feels it has acted correctly in establishing its C&Rs in the case. Those C&Rs included lighting and sound violations committed by Amerada Hess.

Attorney Joseph Harbeson represented Amerada Hess before the town board to request the town rescind the C&Rs of their Special Use Permit at the Aug. 5 town board hearing.

During the testimony John Paider, special counsel to the supervisor produced a copy of a letter from the court documents provided by Amerada Hess when they appeared before Judge Winslow. The letter, dated April 2, 2002 and signed by Amerada Hess Corporation Executive Vice President F. Borden Walker was acknowledging that they had signed the Town of Oyster Bay Restrictions and Covenants. The second paragraph of the letter stated: "By signing these covenants, neither the property owner nor the applicant waive their right to challenge the validity of an individual covenant or restrictions subsequently." Mr. Paider said the letter was never received by the town, although Amerada Hess did sign the C&R document provided by the town.

Attorney Harbeson argued that the restriction against the sale of alcohol is a "pure legal issue," that Hess doesn't deny they signed the document. Mr. Harbeson said he will address whether or not Amerada Hess signed the C&Rs voluntarily, in the future, saying that they were aware they had to sign the document to receive their Special Use Permit (SUP) to expand the Hess Station on the corner of Lexington Avenue and Pine Hollow Road and to add a mini-mart.

He said the town does not have the right to prevent the sale of alcohol, that only the state can. He gave the example of the Exxon vs. Grucci case in which it was found that the Town of Brookhaven did not have the right to regulate the sale of alcohol.

In investigating the Exxon vs. Grucci case, Mr. Paider discovered that the gas corporation did not sign the C&Rs, while Amerada Hess did sign the Oyster Bay C&Rs. He believes this means the two cases are different and that the decision in the first should not affect the second. He called the fact "a distinguishing feature." In the Grucci case, he said, "The C&Rs were ready but not signed when the complainant jumped the gun and went to the Supreme Court to overthrow the restriction against selling alcohol."

He said Amerada Hess knew they were never going to obey the C&Rs saying they signed them involuntarily and sent the court the letter saying they reserved all their rights to question the C&Rs. "That is in the court papers but was not given to the town." Mr. Paider gave a copy of the letter to the town clerk.

Supervisor Venditto said, "Obviously we are heading toward litigation but speaking as supervisor, and a former councilman, when we decide on an application, it is in totality. The C&Rs are but one component of our decision. When a agreement is made and you shake hands over the C&Rs, it is a contract. When you undo that it impacts the totality - the fabric of the board's decisions. The Supreme Court said this should have been decided by the board and not gone to court. That again shows the mindset of Amerada Hess: not only lift it here, but in every (gas) station in the Town of Oyster Bay."

Mr. Paider said the town was dealing in good faith and didn't revoke or suspend their Special Use Permit, over the sale of alcohol, saying it was a legal issue.

Mr. Venditto gave the audience an example of a resident coming in with a commercial application and being told he had to put up an 8 ft. fence at the request of local residents. He answers "absolutely." The town code says the fence must be 6 ft. tall and after receiving approval of the application, the businessman said in no way would he put up the 8 ft. fence. Mr. Venditto said of the board's decisions, "We all try to do the right thing by the community."

In answer, Mr. Harbeson read the town calendar listing for the Aug. 5 meeting quoting it as saying, that the C&Rs are "A condition of a Special Use Permit," to prove his contention that they were forced to sign the C&Rs to receive the permit.

Councilwoman Bonnie Eisler said, "It is perplexing that they signed the document if the restrictions were so egregious to them. Amerada Hess has deep pockets. Why didn't your client at that time protest and research the law? We, the board, feel deceived after going into the agreement. Why break the law after the fact and then say it wasn't legal? Somehow it doesn't play right," she said.

Mr. Harbeson said, "If they wanted to open a gas station and open a convenience store (with the alcohol license) it would take years of litigation to do so and they would be challenged on the issue forever."

Councilman Anthony Macagnone said he wasn't an attorney and to him this was all "legal BS. They said they wouldn't sell beer but they will sell beer. They said one thing and did another."

Councilman Chris Coschignano said, "Why say you didn't intend to do it and sign it anyway?"

Attorney Harbeson responded, "Amerada Hess felt their arm was being twisted and they wouldn't get the SUP unless they signed the C&Rs."

Ms. Eisler said, "We've seen many convenience store applications. This response is above and beyond - in your face. We compromise and work together and bring in the (wishes of the) community."

Attorney Harbeson said he was not the attorney when the application went before town hall; Kevin O'Brien was their counsel. He said, "I understand the counsel and Hess were told this was the one critical issue if you want to open a convenience store." He added, "These stores operate like this (selling beer) everywhere."

Councilman Angelo Delligatti asked, "Why didn't Hess say it before? They agreed to the covenants and signed the covenants and your statement is that they never intended to live up to that."

"Rightly or wrongly, we have been duped," said Supervisor Venditto. He said the case was clearly headed for the courts to be adjudicated.

Councilwoman Eisler brought up another concern. She said Oyster Bay Town Clerk Martha Offerman searched the records back two years to see if Amerada Hess had a liquor license and found none mentioned. Ms. Offerman said if she knew they had a liquor license she would have informed the board. She said the town clerk is regularly notified of anyone who gets a liquor license. One copy of the licensing permit goes to the town board. The permit licensee or their attorney usually inform the town clerk, she said.

Mr. Harbeson then introduced expert witnesses who testified that they fixed the canopy lights and the sound systems that were in violation of the C&Rs. When Councilman Macagnone asked why Hess took so long to comply, Mr. Harbeson said he just received notice of the violations on July 3. They were attended to on July 15.

Later in the testimony, an Oyster Bay Code Compliance Inspector said they were not done correctly. Mr. Paider said the light still bleeds out and the sound system is still too loud.

When the public comments were heard, Oyster Bay Chamber of Commerce President John Specce said all the chamber wants is for Hess to be a good corporate neighbor and keep to the C&Rs. He said the chamber supports the town in its decision. He said currently there are unsightly stacks of soda on the gas pump islands and asked that Hess please do whatever it has to since it is at the entrance to Oyster Bay. He asked the town to enforce the over 21 drinking laws.

Local resident Charles Gaulkin called the Amerada Hess legal argument "outrageous. He is saying a large company can come in and consider the local government a nuisance to be dealt with any way necessary to establish a convenience store as it sees fit. You have a right to lie when your goal is profit. Is this a (new) legal principle - I will be asking if that opinion is upheld (in the courts)."

Mr. Gaulkin paraphrased Amerada Hess as saying "If we told the truth we wouldn't get what we want. So they lied: a shocking admission by a major corporation. The principle of knowing deceit is an element that has to be recognized by the court." Mr. Galkin also criticized the town attorney's office for not doing "more homework" since they knew about the Brookhaven case decision. Mr. Venditto said there is a distinction between the two cases and that he was satisfied on the way it was handled by the town attorney.

Marie Knight, president of the Oyster Bay Civic Association was the next speaker. She said she had a special conference with Amerada Hess representatives at town hall and related what happened. She asked them how long the site lease was for and was told 15 years. "What happens if the proposal is not passed in its entirety?" she asked them. They said they wanted all their requests or nothing, and that in that case they would just sublet the station to a "no-name" gas company, implying that they would be substandard. She said she was in the hospital when she received the call from Oyster Bay-East Norwich Board of Education President Judy Wasilchuk alerting her that Hess was selling beer. She contacted Mr. Paider on March 27 and told him about the problem and told the town board about it on June 10 at a public meeting.

She suggested the board rescind the Special Use Permit. "I feel they were lying and knew what they were doing." She quoted the town law that says any violation of C&Rs and failure to remedy the problem within 30 days allows the town the right to suspend the SUP. She said, "I'm worried about young people driving through and buying beer." She suggested they could compromise and allow Amerada Hess to keep the added pump row.

Ms. Knight said "No matter what the state says, you have the power of your Special Use Permit and that's what you should use."

Emile Copollo, president of the United Civics of Massapequa was in agreement with the town's concern about convenience stores, saying they look terrible. "They have sandwich board signs, signs on pylons and graffiti. It's looking like the south Bronx. We have to stop this."