Fisher Realty has contentious Zoning Board hearing on uses at West Main Street site

A West Main Street property owner’s application to the Zoning Board of Appeals regarding the use of its site sparked a heated controversy Thursday night at Riverhead Town Hall.

An automobile repossession business operated by a tenant of Fisher Realty Group on property Fisher owns at 940-946 W. Main Street is the subject of the appeal to the ZBA and the source of the controversy.

The auto repossession business is not allowed in the Peconic River Community zoning district where the property is located, according to an Oct. 1, 2024 determination by Riverhead Town Zoning Officer Greg Bergman. The building department denied Fisher’s application for a building permit to construct a 500-square-foot office for the auto repo business.

The Peconic River Community zoning district code allows eight uses as-of-right: retail stores/shops; wholesale businesses; institutional uses; offices; nonmotorized open space recreational uses; public parks/playgrounds; restaurants; and agricultural production. The code allows bed-and-breakfast establishments and country inns by special permit of the Town Board. 

Accessory uses — ”those uses customarily incidental to any of the permitted uses or specially permitted uses when located on the same lot,” according to the PRC code — include “outdoor storage, suitably screened.”

At issue is which use is the main use: the office or the storage yard?

Fisher Realty appealed Bergman’s determination to the Riverhead ZBA, which, under state law, interprets town zoning code and may grant  exceptions and variances to the code. 

Fisher argues that the office is the principal use and the storage yard is an accessory to the principal use. 

Fisher Realty rep Ray Dickhoff took the podium to make the request to the board during Thursday night’s hearing. What followed was a long, contentious interchange in which Dickhoff quickly found himself on the defensive under questioning by ZBA counsel, Deputy Town Attorney Annemarie Prudenti and various board members. 

The back-and-forth surrounded the auto repo business use and whether the 2010 ZBA decision in the Blackman appeal covers outdoor storage for the auto repo business. 

Dickhoff argued that the main use for the repo business is a 500-square-foot office, the subject of Fisher’s building permit application. 

“He runs an asset recovery business out of that office. He has three employees. All of his business is conducted inside the office. If he gets a phone call from a lending institution to go out and recover an asset, he goes and he picks up that asset, he brings it back to the yard, Dickoff said.  

“But again, his business is totally run out of this 500-square-foot office,” Dickhoff said. “That’s where the records are kept. That’s where it’s constant phone communication with the different lenders, with insurance companies and with the state of New York,” Dickhoff said.

“So basically, our ask is, if you have an office which is permitted in the PRC, and outside storage suitably screened is permitted in the PRC, and his asset recovery business requires him to store outside vehicles, and his business is totally run inside the office…We firmly believe that the outside storage is accessory to the office,” Dickhoff said.

Fisher Realty also cites a March 2010 ZBA decision in the appeal of Blackman Plumbing Supply, which previously occupied a portion of the same site. That decision allowed Blackman to maintain an outdoor storage yard. 

“The ZBA decision giving Blackman supply outdoor storage of trucks & material is no different than the storage of automobiles that have been reposed and are shipped to New Jersey each week,” Fisher Realty wrote in its application for an interpretation of the zoning code.

Board members and Prudenti disagreed with that conclusion. 

Member Ralph Gazzillo told Dickhoff the area where repossessed autos are being stored is “not embraced by the specific decision” in the 2010 Blackman Plumbing Supply appeal. “This is outside that determination,” Gazzillo said. 

Prudenti told Dickhoff the outdoor storage accessory use granted to Blackman Plumbing Supply by the 2010 ZBA decision was limited to 1,700 square feet and not to be expanded. That decision also did not apply to the separate tax lot east of the Blackman building, where Fisher cleared trees on the north end of the lot without a permit and has allowed the tenant to store repossessed vehicles there in violation of a stop-work order issued by the town.

Dickhoff pushed back.

“Really, come on,” ZBA Chairperson Otto Wittmeier interjected. Referring to the 2010 decision, Wittmeier said, “They’re talking about their business, as far as what they’re storing, their equipment. They have one or two trucks… they didn’t have a fleet of trucks,” Wittmeier said. 

“It’s not accessory,” the chairman told Dickhoff. 

“It’s a business that operates out of an office that needs to have a yard to park its equipment for a period of time,” Dickhoff reiterated.

“The office, which you’re claiming is the principal use, does not have a certificate of occupancy or use permit… It doesn’t exist,” Prudenti said.

She pointed out that presently there is no certificate of occupancy for any use currently on the Blackman site.

“I have applications in right now,” Dickhoff said.

“Any other business operating in Blackman’s building now?” Wittmeier asked. Dickhoff acknowledged that a barber shop/salon is operating there.

“Without certificates of occupancy, without building permits, without use permits,” Prudenti asked, 

“Yes,” Dickhoff said. “Permits are pending,” he said. “We applied for these permits 7, 8, 9, months ago,” Dickhoff said.

“So they’re not legally operating at this site, is that true?” Prudenti asked.

Dickhoff then turned to Fisher’s attorney, Robert Merrihew of Southampton, who had introduced Fisher’s appeal at the start of the hearing, but quickly turned the podium over to Dickhoff to discuss specifics of the site and the application. He was seated in the audience.

“Bob, you want to stand up?” Dickhoff asked Merrihew.

“I don’t have enough information to speak intelligently on that,” Merrihew said from his seat.

Dickhoff and Merrihew both suggested adjourning the hearing so the applicant can return with more information.

“I think we’re good,” Prudenti said. “I don’t think we need to adjourn.”

Separately, Fisher Realty has a site plan application pending for the eventual overall development of the site. The plan calls for the demolition of existing buildings on the site, comprising six separate tax lots and for the construction of two new buildings, including a three-story, 153,4000-square-foot self-storage facility, and a one-story 49,700-square-foot rental building for a “non-nuisance” tenant. 

Wittmeier questioned Dickhoff about the clearing of a previously wooded portion of the site to the east of the former Blackman building, set back from the street. Dickhoff said he believed the company had cleared 8,000 square feet of woods on the north end of the eastern site. 

According to a March 6, 2024 Riverhead Planning Department staff report on the site plan application, “the owner illegally cleared a portion of the subject property, without site plan approval, and imported a mix of crushed concrete, brick, and stone material, in order to create a new driveway from W. Main Street, in order to access the rear parking area on the site. The owner is currently storing vehicles in this area.” An aerial photo included in the report taken Sept. 6, 2023 showing the area with vehicle storage. The town issued a stop-work order and summonses. 

“A violation was issued and there was a penalty issued and it was paid, I believe 20 some-odd thousand dollars,” Dickhoff said. 

A town code enforcement officer on Jan. 4, 2024 issued a summons for continued use of the area for vehicle storage in violation of a previously issued stop-work order, which was still in effect, the planning staff report said.

Board member John Porchia asked about “what seems to be like hundreds of garbage cans” on the site. “Fill us in on what this is all about.”

Dickhoff explained that the owner of Fisher Realty is the owner of Go Green Sanitation. “Those are Go Green Sanitation pails. They are stored there,” Dickhoff said. “Most of them are probably new pails waiting to go out to new customers.”

Go Green Sanitation does not have an office on the West Main Street site, Dickhoff said.

He said Fisher is also storing his own construction trailers on the site. “We use them on construction sites,” Dickhoff said, referring to Fisher’s construction company.

Dickhoff said Fisher wants to redevelop the entire property, as the site plan application shows. “We’ve been going through this process for two years,” he told the board. “In the meanwhile… we filed for use permits for several buildings a year— nine months ago,” he said. 

“We got pulled into this conversation back and forth about the outside storage, and we are still in for building permits, and we’re doing everything we can to legalize what’s there,” Dickhoff said. “Again, we paid the additional money due for those trees. Our goal is to redevelop the property. So all of this really is getting us from today until the buildings can come down and the property can be redeveloped the right way,” Dickhoff said.

“So your justification for illegally occupying and having business operate out of the site without use permits or certificate of occupancy is because you don’t yet have a final plan approved,” Prudenti said, speaking over Dickhoff’s interjected denials of: “I’m not justifying.”

When she finished, Dickhoff said, “That’s not what I said. I think I’m done. He turned to Fisher’s lawyer and asked if he had anything else to add. Merrihew thanked the board for its time.

‘It’s torture…Everything is an obstruction,’ Fisher complains

Wittmeier was about to close the hearing, reserving decision until the board’s next meeting on Jan. 23, when Fisher Realty owner Frank Fisher joined the meeting via Zoom.  He said he wanted to introduce himself. He spoke about other projects his company has done: new rental units on Third Street replacing an existing “dilapidated, drug-infested den,” and a “$20 million dollar project going on on Kroemer Avenue, the propane terminal.” 

Fisher said it took him seven years to get that permit and the project is now under construction. 

48 Kroemer LLC, a company owned by Fisher, filed an application for a Town Board special permit in July 2018. It was approved in October 2020. The company applied for site plan approval in November 2018. After wrangling with the Planning Board over the density of development of the site, safety concerns raised by Riverhead Fire Marshal Craig Zitek and the Riverhead Fire District over the number and placement of propane storage tanks, and an intervening lawsuit (later withdrawn) challenging the Planning Board’s June 3, 2021 decision on the site plan application, 48 Kroemer LLC revised its site plan application and gained preliminary approval in October 2021. It got final approval on June 2, 2022, after meeting all conditions of the preliminary approval.

MORE COVERAGE:

Planning board nixes propane facility plan (June 4, 2021)

Propane facility on Kroemer Avenue gains planning board approval after site plan revision (Oct. 27, 2021)

He stressed his local ties. “I’ve been in Riverhead my whole life. I graduated Riverhead High School. I’m not an out of towner. I’ve lived here. I’ve worked here. My businesses are here,” Fisher said. “I build these projects to keep. Everything that I do has pride of ownership. I’m not looking to build these, flip these. Get rid of them. We’re building these projects. I mean, soup to nuts. I’m putting my heart and soul into these things. We’re just having a tough time with the permitting,” Fisher said. “We’re getting treated like criminals, to be honest with you,” he said.

“It’s just taking the heart out of doing business where— I mean, you want to talk about hardships, seven years to get a permit,” he said referring to the Kroemer Avenue propane terminal. He complained he had to carry the cost of that property to the tune of “millions and millions of dollars.” On the Blackman property, he said, he’s carrying a mortgage that’s costing $38,000 a month. 

“This is something that’s so really, in my eyes, so silly. I’m trying to go through the permit process. I mean, it’s taking us, we’re into this for over two years already,” Fisher said.

“We applied for every permit and every use permit for each one of the tenants. They’re not issuing us anything. They won’t move us forward in the permit process,” Fisher said, until the outdoor storage issue is resolved. “So we’re stuck,” he said.

Fisher took issue with Prudenti saying they are operating without permits. “We paid for building permits,” he said. 

“You are doing it without permits,” Prudenti countered. The permits have not been issued. 

“What I’m trying to say is we want to comply. We would just like a little help from the town,” Fisher answered. “We can’t get a meeting. We go to meet with Town  Board members, and they won’t even give us a meeting,” he said, his voice rising. “It’s just, like, it’s torture, it’s torture, and it shouldn’t be. When you get a developer who — we right now, myself, personally, I have no partners in any of these deals. I have $70 million worth of new construction going on in the town of Riverhead, and I can’t get any help from the town. Everything is an obstruction,” he said.

“So it’s more than this variance. We have to figure this out, man, because it’s just not fair. There is — I mean, this process bankrupts people. I’m not a huge corporation,” he said.  “We want to comply. I’m here to comply. Work with us,” Fisher said.

ZBA hearing on redevelopment plan set for Jan. 23

Fisher Realty has a separate appeal pending before the ZBA regarding the proposed site plan, currently before the Planning Board, which needs three variances from the ZBA. Those variances have nothing to do with the outdoor storage issue before the board last week. 

The variances required for the site plan include one related to the size of the proposed development on the site, which exceeds 200,000 square feet, where the maximum allowed by code is 154,920 square feet. Another variance requested is for exceeding the maximum permitted impervious surface on the site and a third is for retaining natural landscape less than the minimum allowed by the code. That appeal is on the board’s agenda for Jan. 23, Prudenti said.

Wittmeier closed the hearing, but as he did, architect Martin Sendlewski, who has worked with Fisher Realty on other projects, including the propane terminal on Kroemer Avenue, asked to speak. Wittmeier allowed it and Sendlewski took the podium. 

“I’m not a party to this application and I’m not representing any of the applicants here,” Sendlewski said. 

“The purpose of this application is for an interpretation,” Sendlewski told the board. “All of that stuff about violations, what you’re using, this and that, has nothing to do with this — at all. You’re requested to interpret whether or not an office is a permitted use, which it is, whether storage is accessory to a permitted use,” Sendlewski said.

“The entire application is two things. Is an office permitted? Yes or no? Is accessory outdoor storage permitted? Yes or no? And would you consider an office that does business regulated in the State of New York, that needs an office to operate and that requires accessory storage in conjunction with that office business, is that an accessory to that office?  That’s the only question you have, and that’s really the only thing that should have been discussed here. That’s all I have to say,” Sendlewski said.

“Thank you for your tutorial,” Prudenti shot back at him. With that, Wittmeier adjourned the meeting. 

Summonses remain pending in Riverhead Justice Court

Summonses were issued in December 2023 and January 2024 to Fisher Realty related to the West Main Street site. They include use of the site without approvals, removing a posted stop work order, improvements without site plan approval, no building permit, no certificate of occupancy, and others.

Those matters are still pending in Justice Court. They were on Tuesday’s court calendar, but were adjourned again for a future date. 

Fisher’s attorney Merrihew was in court with Dickhoff Tuesday. Merrihew said outside the courthouse his client is working toward resolution of the justice court cases and toward bringing the site into full compliance with town code requirements.