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Mar 14, 2014 4:35 PMPublication: The East Hampton Press

East Hampton Town Goes After Violations At Cyril's Fish House; Cyril's Responds By Filing Restraining Order

Mar 14, 2014 4:42 PM

The on-going conflict about alleged building and zoning code violations at Cyril's Fish House on Napeague has again reared its head. Last week, the East Hampton Town Board passed a resolution to allow the town's attorney to seek a court injunction that would stop such violations from continuing. If granted, Cyril's would have to remove illegal structures and improvements as well as underground commercial fuel tanks.

In response, Cyril's and the Dioguardi family, which own the site, are seeking a restraining order against the town from taking action. They allege that the town has issued duplicate violations and abused the civil process, according to attorney Dianne LeVerrier, who represents Cyril’s.

In a New York State Supreme Court complaint filed in October 2013, East Hampton Town alleges Cyril's has had many town code violations against it at any given time—charges that deal with expansions of the business, failure to obtain required building permits, no certificates of occupancy and operating in the wrong zone.

For example, the zoning for the site was changed from commercial to residential in 1984, and the existing improvements and structures there became pre-existing non-conforming but legal. Any additional improvements that expanded the size or intensity of use would be illegal. At the time of the zoning change, the use of the premises was a small restaurant.

"The defendants illegally changed the pre-existing non-conforming use of the premises from the small restaurant with 40 seats that could legally exist under the certificate of occupancy to a large bar and restaurant operation, which draws hundreds of people at a time to the premises," the complaint states.

Additionally, some of the improvements, like a 915-square-foot addition, two brick patios, a deck, fencing, and a metal frame for an awning went up without any site plan review, building permits or certificates of occupancy.

East Hampton Justice court had granted extensions but the Dioguardis and Cyril's failed to go through with the necessary procedures, the complaint states. There were over 53 charges pending in justice Court regarding 17 violations when the complaint was filed.

Additionally, the Chief Fire Marshal, David Browne, apparently found new violations, which included "significant" health and safety issues like electrical hazards, hazardous materials [paint] on the ground, and lack of parking, which has resulted in an overflow of large crowds of people onto adjacent properties and Montauk Highway, according to the complaint.

In a response from the Dioguardi's attorney, Ms. LeVerrier, the town improperly issued 450 duplicative violations and has abused the civil and criminal process.

According to Ms. LeVerrier, Cyril's and the Dioguardis have never been charged with a violation of an improper, illegal expansion of the pre-existing, non-conforming restaurant use and Michael Dioguardi was issued a summons in 2010 for violations, including no site plan approval, no certificate of occupancy for certain structures on the site.

After a series of extensions, giving Mr. Dioguardi until April 25, 2012 to get the needed approvals, the town charged him with 45 counts of alleged violations in February of that year, despite having the extension, according to Ms. LeVerrier.

Despite the fact that Mr. Dioguardi was permitted to submit a motion to dismiss those charges, he again was issued more counts of the same violations in May, June, July and October 2012.

"Because the motion to dismiss the duplicative charges was in place, defendant, Michael Dioguardi was served with 450 duplicative summonses," Ms. LeVerrier wrote in the response. "

That November those charges were dismissed and Mr. Dioguardi was given until May 1, 2013 to comply.

Because he did not take care of liquid propane fuel storage that was close to electrical hazards, according to the town's then public safety administrator, Pat Gunn, the town sought a temporary restraining order against the business on May 9.

Ms. LeVerrier said Mr. Dioguardi was not even aware of the 58 new charges against him because she was "denied the opportunity" to get copies of the summonses.

That day, however, the town and Cyril's reached an agreement—the business was ordered to remove the tank the following Monday, an order that Mr. Fitzsimons complied with, according to Mr. Gunn.

Later, in a split vote on May 21, the East Hampton Town Board denied a zone change that would have made it possible for Cyril's Fish House to create more parking spaces and add seating by changing the zoning from residential to neighborhood business. The Dioguardis wanted to merge the lot containing the restaurant with a vacant parcel adjacent to it and planned to create a parking lot to deal with the chronic overflow of parked cars along Montauk Highway. The plan also included increasing the restaurant’s seating capacity from 62 to 92 seats.

Town Councilman Peter Van Scoyoc had said granting the zone change would have been rewarding bad behavior, but the most concerning issue was the possibility of setting a precedent for other builders and businesses in the area to build on top of or near wetlands.

In her response to the town's charges, Ms. LeVerrier said the Dioguardis have been unable to get a fair shake with Town officials because of how negatively Cyril's has been portrayed in the media and that their request for the interpretation of their pre-existing, non-conforming structures was denied because of the pending litigation.

"The fact is many of the structures that are the subject of the Town's complaints in this action and the action before the justice court either predate the applicable zoning laws, or were structures for which permits were not required," Ms. LeVerrier said. "Nevertheless, the defendants cannot get the Town to sit down and make a determination that comports with its own town code."

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here we go... harass and shut down another local institution while saying "come on in" to chains and stores that cater to tourists.

Remember when the Town kicked Dan out of Poxabogue to bring in some fancy place? How'd that work out?
By littleplains (305), olde england on Mar 15, 14 6:51 PM
1 member liked this comment
Have you been to Cyril's?

If you haven't, stop by and take a good, hard look at the condition of the place...
By Mr. Z (11647), North Sea on Mar 15, 14 8:13 PM
Its those cheapy Co Ops across the street. Apparentely they forgot why they come to Montauk and want it all to themselves. If your going after Cyrils what about that Sloppy Tuna place right in the heart of down town. Im mean this is what Montauk is all about. Leave it alone.
By North Sea Citizen (564), North Sea on Mar 16, 14 7:24 AM
It's a dump, so is the Sloppy Tuna. Montauk has gone down hill the last 4 or 5 years with all the fedora wearing , hipster tools that party like they own the place. God help the year round residents this summer.
By bigfresh (4590), north sea on Mar 16, 14 8:40 AM
Here's a few tips for the property owners and Cyril.

Zoning: intensity of use of a pre-existing non-conforming use is not illegal and is not considered an expansion. That's the law under zoning and well established - res judicata.

Enforcement: Selective enforcement. The town is picking on them clearly without enforcing the code to other business owners in the area. A superior court judge will see right through this.

Property: The property owners were denied a remedy ...more
By rita33 (11), East Quogue on Mar 16, 14 9:11 PM
1 member liked this comment
The expansion of use is well documented, and the fact is that the "many" are the adults that live/own homes out here, not the "few" that come in (from E. Quoge et al) to party. Cyril's right to cash in on the hype doesn't trump our rights for peaceful enjoyment.
And selective enforcement? Talk to the Surf Lodge.
By zaz (197), East Hampton on Mar 18, 14 9:57 AM
power tools, home improvements, building supplies, Eastern Long Island