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Judge rejects Smithtown's denial to build Sonic in Nesconset

A view of the Sonic restaurant at 1380

A view of the Sonic restaurant at 1380 Deer Park Ave. in North Babylon on Monday, April 14, 2014. A State Supreme Court judge has overturned the Smithtown Board of Zoning Appeals' denial of a request to build a similar eatery in Nesconset, saying the board "improperly bowed to community pressure" over traffic, safety and quality-of-life issues. Credit: James Carbone

A State Supreme Court judge has overturned the Smithtown Board of Zoning Appeals' denial of a request to build a Sonic in Nesconset, saying the board "improperly bowed to community pressure" over traffic, safety and quality-of-life issues.

State Supreme Court Judge Daniel Martin "vacated and annulled" the zoning board's November 2012 rejection of a special exception request by Valley Stream-based Serota Smithtown Llc, the property owner, and Cinos Smithtown Llc, the franchisee.

They sought the exception to permit a 2,100-square-foot Sonic drive-in at the southeast corner of Middle Country Road and Alexander Avenue, near Smith Haven Mall.

The BZA "improperly bowed to community pressure in making its determination," Martin wrote in his decision late last month. "The complaints of the neighbors, as well as the findings of the respondent BZA, were uncorroborated by any empirical data or expert testimony."

Martin instructed the BZA to reconsider Serota and Cinos' application for numerous variances, including permission to install 22 loudspeakers at locations other than drive-thru windows and increases in the number and size of signs.

BZA attorney Paul Hennings said "we respectfully disagree" with Martin's findings but declined to comment further on the decision. He said he plans to file an appeal after he is formally served with the judgment.

"By operation of law, the court's decision . . . will be stayed upon the filing of the notice of appeal," Hennings said, adding that the stay would also halt the judge's instructions that the BZA issue a decision on the variances. "They need the variances in order to know what exactly they're entitled to build."

Sonic is a 1950s-style fast-food chain known for its hamburgers, hot dogs and shakes delivered to customers car-side by servers on roller skates. The chain has more than 3,500 U.S. locations, according to its website.

Sonic's only Long Island location is on Deer Park Avenue in North Babylon; it opened in 2011. In March 2012, the Hempstead Town Board of Appeals rejected a proposed Sonic in East Meadow.

Susan Fink, a neighbor who lives south of the proposed Nesconset site, said she visited the Sonic in North Babylon and could hear -- even off the property -- an employee asking a customer over the loudspeaker: "Do you want a drink with that?"

Fink said she was "insulted" by the judge's decision, adding: "It just seemed that we were undervalued. We weren't considered a credible voice because we weren't paid experts."

Nora Dettling, a neighbor who is named in the lawsuit, said she already has limited use of her backyard because of a restaurant operating on the same parcel on which Sonic plans to build, and expects Sonic to exacerbate the situation. "I pay all these taxes and I can't even enjoy opening up my slider and going outside," said Dettling, 64. "It smells of grease."

Robert Lipinski, 65, who is named in the suit and whose home would abut the proposed Sonic, said he worries about safety and traffic at the already busy intersection, including access for emergency vehicles.

But Melville attorney Bram Weber, who represents the property owner and franchisee, said the location is appropriate.

"The court stated clearly that the evidence supported this location as appropriate for a Sonic restaurant," Weber said. "Sonic intends to move forward with its application at this location and open a restaurant which serves the community well."


The court ruling pointed out differences between the exising and proposed Sonics

North Babylon

Acres -- 0.8

Parking -- 10 non-drive-in parking spaces

Canopy location ("a major source of light and noise impact") -- Along the property line to the existing residences, separated from the nearest residences by about 100 feet of lawn area


Acres -- 1.8 of partially developed 4.9-acre site

Parking -- 24 non-drive-in parking spaces on the 1.8-acre site, and "a surplus" 83 parking spaces on remainder of overall 4.9-acre site

Canopy location -- At least 105.6 feet from the property line, oriented perpendicular to existing residences and separated by about a 60-foot naturally vegetated buffer supplemented by two rows of evergreen trees

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