State appellate court upholds earlier ruling on Gershow Recycling’s Hubbard Avenue facility

A state appellate court has sent Gershow Recycling’s Hubbard Avenue facility back to the Riverhead Planning Board for review, upholding an earlier state Supreme Court ruling.

The ruling wasissued April 7 by the Appellate Division’s Second Department in New York,  as both the town and Gershow had sued each other back in 2014. 

Gershow, which is still operating, bought the former Fred J. Gallo Used Auto Parts location in November 2011. At the time, it was considered an auto salvage facility, officials said. 

Gershow then filed a site plan application with the town for projects like installing drainage, building a retaining wall and landscaping. 

The town’s planning and building departments determined that this work was “de minimus” (minor) and did not need site plan approval from the Planning Board. 

After Gershow began working on the site in November 2013, they also submitted an amended site plan application reflecting additional “as built” improvements on the property. 

It was around this time that neighbors began complaining that Gershow was producing noise and vibrations that did not occur when Gallo owned the property, despite Gershow’s claims that they had same permit as Gallo. 

The Town Board filed a lawsuit against Gershow in May 2014, claiming it was in violation of various state and town codes. 

Gershow in turn, filed a lawsuit against the town that same year. 

The town rejected Gershow’s site plan in a denial letter from Jefferson Murphree, the town’s building and planning administrator.

The letter claimed that Gershow had changed the property use from a non-conforming, preexisting “auto salvage yard” to a recycling center. 

State Supreme Court Judge Denise Molia ruled in June 2017 that only the Planning Board, not Mr. Murphree, has authority to approve or deny site plan applications. 

The Appellate Division agreed. 

“The Supreme Court properly determined that this matter should be remitted to the Planning Board for further proceedings,” they wrote. “… it requires the Planning Board to act on the site plan application.”

Jason Sterm, the attorney for Gershow, did not return a call seeking comment.