By Victoria A. Caruso
Just when residents thought they had heard the last of a proposal to build a Checkers eatery in Merrick -- after the Town Board of Zoning Appeals denied a construction permit for the 50's-style restaurant last year -- the courts reserve the BZA's decision.
Nassau County Supreme Court Judge Edward McCabe recently issued a ruling allowing for construction of the restaurant. In 1999, the Town BZA had sided with area residents when they said locating a Checkers at a "dangerous" intersection such as Hewlett Avenue and Sunrise Highway could create additional traffic hazards along two already busy thoroughfares.
Judge McCabe's decision followed two years of conflict between the BZA and Mian Enterprises - a partnership between businessmen Ben Heitner and Kursheed Ahmad. Mian first submitted its BZA application to build the Checkers in July, 1998. Merrick residents -- including Nassau County Executive Thomas Gulotta and State Senator Charles Fuschillo -- protested. The BZA denied the application.
In January, 1999, Mian sued the BZA, but quickly withdrew the lawsuit and submitted revised site plans that eliminated a Hewlett Avenue entrance to Checkers, making the restaurant accessible only from the eastbound side of the Sunrise Highway. A month later, the BZA again denied Mian's application. Mian Enterprises appealed to the courts, leading to Judge McCabe's September 19 decision permitting a Checkers in Merrick.
Judge McCabe said in effect that the BZA had already approved a Checkers at Hempstead Turnpike and Third Street in East Meadow; logically, it therefore had little cause to deny one in Merrick.
Judge McCabe said in his decision that the BZA's denial of Mian's application "is arbitrary and capricious in addition to not being supported by substantial evidence in the record."
The judge also ordered the BZA to "grant the special permit and variances applied for [by Mian] and to impose reasonable conditions not inconsistent with the conditions imposed on prior Checkers restaurants approved by the board."
Merrick resident Ron Coons, who lives nearby the proposed Checkers site, said, "Comparing Hewlett Avenue in Merrick to that of the other Checkers doesn't make any sense. It's like comparing apples and oranges. The East Meadow Checkers is not on the corner of a major intersection; it's in the middle of the block. Hewlett Avenue is a main artery in Merrick."
Cecilia Brauer, whose Hewlett Avenue homes lies just south of the proposed site, agreed. "When it was first proposed, I sat on my front porch and counted how many cars travel along Hewlett Avenue," she said. "I counted as many as 700 to 800 an hour. It is the busiest intersection in Merrick that runs north and south."
The town's traffic consultant, Steven Schneider, testified during BZA hearings that increased traffic from a Checkers at Hewlett and Sunrise could indeed pose a threat to anyone driving or walking in the area. The BZA agreed with Mr. Schneider, while it discounted the testimony of Mian's traffic expert, Robert Eschbacher.
However, Judge McCabe said, "...the concerns expressed by [the town's traffic consultant] do not furnish sufficient grounds for denying [Mian's] application." He also ruled that there was not "substantial evidence to support the board's conclusion" that eliminating the Hewlett Avenue entrance would create a "dangerous traffic flow on and off the premises."
In reply, Ms. Brauer said, "Sunrise Highway is the Long Island Expressway of the South Shore, with lights. Traffic goes through at 50 to 60 miles an hour. If cars are going to be making U-turns to get in and out of the restaurant, there are going to be so many accidents."
In addition to permits for a drive-thru window on either side of Checkers, Mian is also seeking variances for an illuminated sign, two drive-thru menu boards, three walk-up menu boards, parking in the front-yard setback off Sunrise Highway and an outdoor eating area. The restaurant's facade, designed to resemble hamburger joints of the 1950's, would be decorated with "checkered" patterns of yellow, white, black and red.
According to residents, Checkers is not in keeping with the style of local neighborhoods. "We are the Spanish Gables," said Ms. Brauer, who has lived on Hewlett Avenue for almost 45 years. "We still have a lot of class, and a Checkers is going to destroy that." She is also concerned about the noise and trash that a fast-food restaurant might generate.
Derek Donnelly, president of the Merrick Gables Association, said he is frustrated with the entire appeals process. "When the BZA first hears a case, and it is opposed, residents are able to voice their concerns," said Mr. Donnelly. "But when [an applicant] appeals a case, they have the opportunity to present and reargue their entire case all over again. We should be allowed to present our arguments again, but we don't get a second chance to state our case or defend ourselves."
Peter Mineo, the Mineola-based lawyer representing Mian Enterprises, said the BZA can appeal Judge McCabe's decision. "Once the town receives a copy of the decision, they have 30 days to submit an appeal," he said. "If they appeal, the case will go to the Appellate Court and could go one for another year. We're not going to find out for a month or so whether or not the town is going to appeal."
At press time, the Board of Zoning Appeals had not received a copy of Judge McCabe's decision. Town press secretary Michael McConnell said the board would not comment about the judge's decision until they had reviewed it.
The entire building permit discussion, however, could be moot. Barry Fox, co-president of the Merrick Park Home Owners Association, said the current building at the southeast corner of Hewlett and Sunrise, where Checkers is proposed, was recently under renovation. Mr. Fox said he believed a flower shop was to go in there.
Mr. Mineo said the building's owner could only lease the property to another party if Mian Enterprise's lease had expired -- and he was unsure if it had. "If [the owner] was in the process of signing a lease with another tenant, then we are out of luck," the attorney said. "This could actually be a big waste of time if the property has been leased to someone else."
