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Clarkstown Greenlights New Gas Station Next To Existing Station Despite Prohibition In Town Code
Clarkstown has given permission through a “special permit” for a gas station to open less than 1,000 feet from an existing one on Route 303 in West Nyack. But the existing gas station owner says the town and its Zoning Board of Appeals have violated the town code, and is seeking to void the permit in Rockland County Supreme Court.
Courts review decisions made by Zoning Boards of Appeal through what is commonly referred to as an “Article 78” — a court proceeding challenging the decision of a Town Board, its Planning Board or its Zoning Board of Appeals. At issue here is whether Clarkstown’s Zoning Board of Appeals skipped steps or gave short shrift to environmental concerns before giving the gas station the green light to proceed.
In 2023, a vacant and derelict former Shell station at 112 North Route 303 in West Nyack was purchased by Congers BP Fuels LLC, a gas station operator that owns and operates a BP station at 102 Lake Road in Congers. The Route 303 shuttered Shell station is situated next door, less than 1,000 feet, from a Mobil station at 116 North Route 303. CPD NY Energy Corp., based in New Paltz, owns the Mobil station.
The former Shell station dates back to 1974, when Atlantic Richfield Company (ARCO) sold it to the Nyack Motor Hotel at 110 Route 303. The gas station operated under the Shell name until 2004 when a fuel leak was discovered and the station shut down. It’s been closed ever since, and the clean-up of that fuel leak continues to date, according to the DEC.
In 2023, The Nyack Motor Hotel sold the gas station property to Congers BP Fuels LLC.
Last January, Congers BP Fuels sought to re-open the former Shell Station (as a BP station with a convenience store), but needed a “Special Permit” and a zoning variance because the Town Code precludes opening a new gasoline filling station within 1,000 feet of an existing station. Congers BP Fuels plans to rehabilitate the existing structure to serve as a convenience store, install new underground storage tanks, replace the canopy, and add eight gas pumps on service islands with associated underground piping.
Clarkstown Town code permits the Town Board, Planning Board, or the Zoning Board of Appeals to issue “Special Permits” to allow gasoline filling stations in certain areas of the town provided they are not less than 1,000 feet from an existing gasoline filling station. If an applicant is within 1000 feet , it would need both a special permit and a zoning variance.
In a public hearing before the Clarkstown Town Board last June, Clarkstown Town Supervisor George Hoehmann said, “There was a gas station located on this property for several years, and ceased to operate for a period of time. They are coming back to get a Special Permit.” Hoehmann said no site plan approval was necessary and that an Environmental Review was done on behalf of the Town Board. He added that no impacts on the area were noted.
However, the Rockland County Planning Department in its GML (General Municipal Law) review noted several environmental issues, including the ongoing cleanup by the DEC, a federally regulated wetland on site, and the existence of a tributary of the Hackensack River running along the eastern portion of the site. The agency also noted the entire site is within the riparian buffer of the river, warranting additional investigation, protection, and study.
Despite the county’s concerns, the town board unanimously approved the application for the Special Permit, but specified that it was “conditional” on Congers BP Fuels getting a variance from the Zoning Board of Appeals because of the 1,000-foot rule.
“They must go the Zoning Board of Appeal to get the appropriate variances that are required – operating next to another gas station,” Hoehmann said at the meeting.
The matter advanced to the ZBA on December 9, 2024. The ZBA noticed the hearing for a “Special Permit,” rather than one for the variance from the 1,000 foot restriction in the Town Code. All other hearings that day were noticed for “variances” putting the public on notice of what would be heard by the ZBA.
When considering a request for an area variance (a variance from the 1,000 foot prohibition), the ZBA was required to consider factors such as: whether there are other ways to achieve the desired benefit; whether the requested variance is significant; whether the variance will have a negative impact on the neighborhood or environment; and whether the applicant is responsible for the issue that requires the variance.
But instead, ZBA members focused on hours of operation (the applicant wants a 24/7 operation), and lighting. There were no public comments, and the public hearing was closed. The ZBA unanimously voted that SEQRA review was unnecessary. Rather than grant an area variance for the 1,000 restriction, the ZBA granted a Special Permit.
CPD filed suit in Rockland County Supreme Court on January 8th, charging that the Town’s Zoning Board of Appeals (ZBA) improperly and illegally granted a 100 percent variance to Congers BP Fuels to open and operate a service station within 1000 feet of CPD’s Mobil station.
In its lawsuit, CPD Energy alleges that the Zoning Board of Appeals never reviewed the factors that are necessary to grant a variance from the 1,000-foot prohibition, and in fact, the board never ruled on the variance itself. The lawsuit claims that the notice of public hearing was misleading because it never referred to a “variance.”
Additionally, the lawsuit says the ZBA failed to comply with SEQRA and assess potential environmental impacts.
CPD is asking the Court to void the ZBA decision.
“The Town had a reason to adopt a 1,000 foot restriction on gas station proximity and that is now a Code requirement,” said James Bacon, attorney for CPD Energy. “If the Town wanted to grandfather prior uses, it would have allowed that in the Code. It did not.”
He added, “An analysis of a site’s prior use is not a listed review requirement in the Town’s Code.”
The attorney also pointed out that the tributary of the Hackensack is listed by the state and federal government as ‘impaired.” He said, “The only way that ‘impaired’ waters are brought back into compliance with water quality standards is for Towns like Clarkstown to reduce existing pollutant loads. However, this Applicant never addressed stormwater impacts.”
The Court will decide whether Clarkstown’s Zoning Board of Appeals acted improperly or beyond its authority when it gave Congers BP Fuels the green light to open a gas filling station in a location prohibited under the Clarkstown Town Code, whether it followed the procedures it was required to follow, and whether it properly considered the appropriate factors it was required to consider under state law and the town code before approving the project.
