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Brinkmann Hardware Corp. sues Southold Town over six-month moratorium

06/03/2019 11:40 AM |

Brinkmann Hardware Corp. has taken legal action against the Town of Southold in response to the moratorium now in place along Main Road in Mattituck, which they argue is “designed solely to frustrate and delay” their proposed project.

Their plans to construct a 20,000-square-foot hardware store at the corner of Main Road and New Suffolk Avenue on a 1.78-acre parcel were halted in February when the Town Board approved a six-month moratorium on the issuance of approvals and permits for properties between Bay Avenue and Pike Street.

Town officials said the moratorium will help the board review new projects in the context of the results of a pending traffic study and the final comprehensive plan, which is completed but pending adoption by the board. It could be renewed for an additional six months when it expires in July.

It does not affect residential permits or public institutions.

The Brinkmann owners filed a legal challenge referred to as an Article 78 petition in Suffolk County Supreme Court May 23, claiming that the moratorium lacks a valid zoning purpose and is an “unlawful exercise of the town’s police powers.” The suit names the Southold Town Board and Planning Board as defendants along with the town.

It also claims that the moratorium was never referred to the Suffolk County Planning Commission for review.

In March, Planning Board chair David Wilcenski notified the applicants that due to the moratorium, the board would no longer process the application.

“This moratorium seems designed specifically to prevent my family from constructing our business,” Ben Brinkmann, CEO of Brinkmann Hardware, said in a sworn affidavit.

They also claim that their property is “the only significant, vacant parcel” in the area defined under the town moratorium.

The Brinkmann family operates a paint store in Jamesport in addition to hardware stores in Sayville, Holbrook, Blue Point and Miller Place.

They are proposing a 12,000-square-foot hardware store and 8,000-square-foot paint store in Mattituck, which will require special exception from the Planning Board due to the size of the buildings. Current zoning allows for 6,000 square feet of retail development in the Hamlet Business district.

Since first announced in 2015, the plan drew swift opposition from residents, who cited both environmental and traffic concerns for the pushback. Town officials had also partnered with Suffolk County Legislator Al Krupski (D-Cutchogue) in an effort to purchase and preserve the property as a park.

The Brinkmanns officially closed on the property for $700,000 in November, records show.

Court documents further allege that politics and an apparent soured deal with Rich Orlowski, who owns a hardware store on Love Lane, played into the opposition to the project.

The petition alleges that prior to proposing to develop the Main Road property, Mr. Brinkmann and his brother, Henry, made a “handshake deal” with Mr. Orlowski to buy out his business for $350,000 and make him the manager of the new store “in an effort to avoid hurting an existing local hardware retailer.”

Text messages allegedly exchanged between Mr. Brinkmann and Mr. Orlowski were included as an exhibit to the petition.

Mr. Brinkmann also claims that Mr. Orlowski then switched legal counsel, retaining former Southold Town attorney Martin Finnegan, and increased his demand to $700,000, which was described as “outrageous” in the court document.

According to the filing, Mr. Finnegan is alleged to have pressured the Brinkmanns into accepting the increased demand, suggesting that accepting would clear political “hurdles” faced by the applicants in obtaining the necessary approvals.

Mr. Finnegan responded to the allegations Friday, describing his prior role as Town Attorney as “irrelevant” to the matter.

Though he confirmed that Mr. Orlowski did engage in negotiations related to the potential sale of his business and possible employment, Mr. Finnegan said that “the sale of an established business is not accomplished by text message.”

According to Mr. Finnegan, the offer was to purchase inventory the Orlowski Hardware Store had on hand for an unspecified amount. “There was no offer for the good will of the business which is a significant asset,” he said, which is what drove the increase in purchase price. That estimated value, he said, is a “customary term” in any business sale.

The filing also alleges that while attending a political fundraiser at Founders Landing in August 2018, Supervisor Scott Russell “became agitated,” and told Mr. Brinkmann, “You don’t belong anywhere on Main Road. You don’t belong on the North Fork.” He then stormed off, according to the petition.

Mr. Russell denied the accusation Thursday.

“The comments attributed to me are completely false,” Mr. Russell wrote in an email, adding that he told them he could not comment on pending applications during their encounter at the fundraiser. “Trying to use political back channels to solicit approvals doesn’t work in Southold,” the supervisor continued, declining to comment further on the pending litigation.

According to the petition, the Brinkmanns are seeking the nullification of the moratorium as well as compelling the Planning Board to process their application for site plan approval in addition to an award of costs and legal fees associated with the action.

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