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Apr 16, 2018 2:29 PMPublication: The Southampton Press

'The Hills' Developer Files $100 Million Lawsuit Against Southampton Town For Rejecting PDD

An aerial view of The Hills at Southampton property in East Quogue. PRESS FILE
Apr 18, 2018 10:46 AM

The developer behind the The Hills at Southampton luxury golf course resort community in East Quogue filed a $100 million lawsuit last week challenging the Southampton Town Board’s rejection of the project in December—and specifically charging that the two council members who voted against the project, Julie Lofstad and John Bouvier, cast “illegitimate” votes.

In a lawsuit filed on April 11 in Suffolk County Supreme Court, several limited liability companies—including DLV Quogue and DLV Parlato, which are owned by Arizona-based Discovery Land Company, the developer behind the rejected project—allege that the way the project was voted down in December was “unconstitutional and unlawful.”

The developer spent years pitching and revising its project as a planned development district, or PDD, a now-defunct planning tool that allowed for a change of zone in exchange for community benefits. The proposal sought the Town Board’s approval for the PDD to build 118 luxury housing units and an 18-hole private golf course on nearly 600 acres in East Quogue.

The December vote was a special decision that called for supermajority support from the board—approval of at least four of the five Town Board members. But the developer was able to secure only three votes; Ms. Lofstad and Mr. Bouvier shot it down, citing concerns about the project’s potential impact on the environment.

The lawsuit filed by Steven Barshov, an attorney with Sive, Paget & Riesel P.C. in New York City, who is representing the developer, challenges the votes cast by Mr. Bouvier and Ms. Lofstad last year.

“Mr. Bouvier and Ms. Lofstad irrationally and intentionally raised groundless so-called environmental ‘concerns’ whose existence and validity were flatly rejected in the Project Findings Statement,” the lawsuit reads in part. “Their votes were not only an intentional abrogation of their legislative obligation to vote in accordance with the binding Project Findings Statement, their votes were cast for the illegitimate purpose of assuaging a loud and vocal minority of project opponents.”

The lawsuit requests the following: Mr. Bouvier’s and Ms. Lofstad’s votes against the PDD be overturned; the town should pass a local law allowing the development to be built; and that the town pay at least $100 million in damages, plus attorney’s fees.

Ms. Lofstad said she could not comment on the pending litigation when reached on Monday afternoon. Likewise, Mr. Bouvier declined to comment on the pending lawsuit.

Town Attorney James Burke could not be reached for comment this week.

Mark Hissey, a vice president of Discovery Land Company, also did not immediately return calls this week seeking comment.

The positive findings statement, compiled by the town’s Planning Department, was the final hurdle that had to be cleared by the developer in the arduous state environmental review of the project. The review needed to be completed for the Town Board to be able to vote.

Findings statements are generally indicators as to how the Town Board will vote on the final proposal—typically, a lawmaker wouldn’t reject a findings statement but then vote in favor of a project, or vice-versa.

The findings statement was approved by the Town Board in October in a 3-2 vote; Mr. Bouvier and Ms. Lofstad both voted against it.

At the time, Ms. Lofstad said she still had concerns about the project’s potential impact on the aquifer. Similarly, Mr. Bouvier said at the time that he was voting against the findings statement because of the “unpredictability” of the environmental impacts.

Both lawmakers aired similar concerns a month later when they voted down the PDD application.

Robert DeLuca, president of Group for the East End, and a vocal opponent of the project, said on Tuesday that developers often sue when projects are rejected. With that said, the environmental advocate added that Mr. Bouvier and Ms. Lofstad were not obligated to vote for a findings statement in the State Environmental Quality Review Act, or SEQRA, that they didn’t agree with—even if it secured the mark of approval from other town officials.

“The SEQRA process gives you a window into the impacts to the project, but it doesn’t supersede the town’s authority to act,” Mr. DeLuca said.

While the project was rejected in December, Mr. Hissey had warned that he would not be going away. In November, when it appeared to be evident that he would not be receiving the necessary Town Board approvals, he shared that his company had plans to make a legal challenge against the town.

Around the same time, the developer filed a pre-application with the town’s Planning Board for an as-of-right development on the same land. The developer is now pitching a development—now called Lewis Road Planned Residential Development, or PRD—that calls for the construction of 118 homes, the same number of units included in the earlier application, along with a private 18-hole golf course on nearly 600 acres. All of the land is in a 5-acre residential zone, the most restrictive in the municipality.

For this proposal, the developer is insisting that it can build its golf course development without securing a change of zone. The company points to a little-used portion of the town code that permits the addition of certain recreational amenities, such as tennis courts, in residential neighborhoods, and argues that a golf course to be used by the development’s residents is a comparable amenity allowed by current zoning.

The pre-application also has an alternate plan that calls for 137 units—including some workforce housing—and no golf course. The golf course resort is the preferred option by the developer.

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This lawsuit is bluster and intended to scare the town into acquiescing to the developer. Remember when he said: “We will have golf. We will have golf.”?

Mr. Hissey's throwing a Hissey-fit.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 16, 18 2:40 PM
120 part time residences on 600 acres. Meanwhile the average East Quoque house is on a third of an acre? Who's polluting? I hope the crooks in town have to pay them 100 million.
By chief1 (2518), southampton on Apr 16, 18 3:29 PM
It's not about the residences, it's about the golf-course and fertilizer runoff.

Aren't we having another problem with the water-table right now? Closing wells everywhere? Seems like a reasonable concern to have.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 16, 18 3:40 PM
Are we closing wells because of golf courses or because of airports?
By dnice (2340), Hampton Bays on Apr 16, 18 6:58 PM
2 members liked this comment
We're closing them because they're contaminated.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 16, 18 9:12 PM
1 member liked this comment
In fact, groundwater contamination is more likely from homeowner use of fert, fungicide, herbicide, insecticide, etc than any amount put down by golf courses. Homeowners have no restrictions as to what they use or the amount they are allowed to put down let alone any training in how to do so. Commercial applicators (lawn doctor type companies) and to a lesser degree golf courses, all have strict regs and chemical usage reporting to follow.
By dnice (2340), Hampton Bays on Apr 16, 18 9:14 PM
2 members liked this comment
You didn't answer my question Fore. Why are wells being closed? Are they next to golf courses or are you referring to the recent problem of contamination from nearby airports?
By dnice (2340), Hampton Bays on Apr 16, 18 9:16 PM
Homeowners also have no profit incentive to have pristine lawns, whereas the success of a golf course quite literally lives and dies with its grass.

Frankly, I'm not aware of the contamination sources, but from what I understand the land Discovery plans to develop is particularly permeable and close to the water table.

In any event, it's not just the water table. Nitrates cause extensive algae blooms which harm fisheries and yada-yada-yada, you're from HB, you know the deal.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 16, 18 10:00 PM
East Quogue wells are currently being tested because of an abandoned, Southampton Town landfill. According to the SCDH tech that sampled my water yesterday, that site has the highest level of PFOS they have seen. That contaminated, Town owned property is ironically right accross the street from this proposed development. .
By cmac (141), East Quogue on Apr 17, 18 7:08 AM
Fore, I agree that nitrates are a problem however it is highly possible that having that many houses instead of a golf course could be worse long term.
By dnice (2340), Hampton Bays on Apr 17, 18 10:08 AM
It is certainly within the realm of possibility, depending on the individual owners' prerogatives as opposed to the single - most importantly, liable - body that would be a golf course.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 17, 18 10:51 AM
This is another scare tactic by the Discovery Land Company so the SHT Planning Board will approve their latest attempt to put in a golf course in EQ. The Discovery Land Company is nothing but a bunch of bullies trying to get their way!

The DLC bought the property knowing that the current zoning would have to be changed and counted on buying off elected officials and some in EQ. I am thankful that both Ms. Lofstad and Mr Bouvier voted to nix "The Hills." Perhaps SHT should hire outside counsel ...more
By crusader (386), East Quogue on Apr 16, 18 3:49 PM
Who’s their lawyer, Michael Cohen?
By Turkey Bridge (1861), Quiogue on Apr 16, 18 4:16 PM
He's nusy cleaning up for Hannity and the Mess in the White House
By PatrickKing (6), Sah Harbor on Apr 16, 18 4:57 PM
This is the level to which you've sunk,TB?




By Frank Wheeler (1796), Northampton on Apr 16, 18 5:00 PM
3 members liked this comment
Lighten up, Mr. Wheeler. Si non rident copulentur.
By Turkey Bridge (1861), Quiogue on Apr 16, 18 7:44 PM
1 member liked this comment
Declinet autem a tergo et non obscurissima Latine. TB!

It was, I thought, beneath you, but clearly I over estimated your capacity for civil discourse.



By Frank Wheeler (1796), Northampton on Apr 16, 18 10:24 PM
"legislative obligation to vote" = that's a new one. Joke
"the town should pass a local law allowing the development to be built" = you're going to sue the town into passing a law? Joke
By rburger (77), Remsenburg on Apr 16, 18 5:26 PM
1 member liked this comment
Hey Mark Hissey: Get over your self! Your environmental nightmare was voted down, pack your carpet bag and go, please.
By bigfresh (3679), north sea on Apr 16, 18 5:54 PM
Thank you Jay Schneiderman, is this the ploy you helped Discovery Land Company to come up with? Do you think the citizens of Southampton Town don't see your hand in this attempt to bully the Southampton Town Planning Board into giving your friends a golf course?
I am a lifelong Democrat and history has shown what happens when you vote for a Democrat of convenience and not conviction. Anna, Brad and Jay were members of the Independence Party (Jay was also a Republican), do I have to say more? ...more
By SpeedRacer (104), Southampton on Apr 16, 18 6:52 PM
As I recall, the "right people" spent decades telling everyone tetraethyl lead was safe.
By Mr. Z (10415), North Sea on Apr 16, 18 7:09 PM
I understand your point Z. IMO 120 houses can and probably does pose more of a risk than the golf course. Everyone wants a green lawn and homeowners have no restrictions to what they can put down and no requirement to document what they put down.
By dnice (2340), Hampton Bays on Apr 16, 18 9:23 PM
1 member liked this comment
Isn't George Clooney an investor in Discovery Land?
By dfree (547), hampton bays on Apr 16, 18 7:22 PM
Yes, he is.
By June Bug (2122), SOUTHAMPTON on Apr 16, 18 8:03 PM
So what if he is?
By dnice (2340), Hampton Bays on Apr 16, 18 9:17 PM
I would really like to see him show up at one of the Town meetings and explain why it's OK for his real estate investment company to sue the elected officials of a small rural town that want to preserve our environment by limiting development.
By dfree (547), hampton bays on Apr 17, 18 3:59 AM
Get The developers out of the east end. Farrell builders is already making the area look tacky and ugly...never mind all the homeless wildlife. STOP...
By rvs (92), sag harbor on Apr 16, 18 8:32 PM
Someone should explain to HIssey et. al. that a change of zone is a discretionary item by the Town Board and that they are under no obligation to vote in favor of said request (no matter what environmental findings there may be).

Furthermore, the article isn't exactly right re: findings statements. While it's true that a findings statement is generally an indicator of what the MAJORITY vote is, the PDD needed a SUPER majority. So, there's that...
By Nature (2966), Southampton on Apr 16, 18 9:02 PM
1 member liked this comment
Wow none of the ugly houses In East Quoque produce pollution? None of the geniuses living in Shinnecock Shores with their septic systems in ground water produce pollution? Lol
By chief1 (2518), southampton on Apr 16, 18 9:48 PM
1 member liked this comment
For those who do not believe that a developer has the right to be heard in court when they have been unlawfully mistreated by local government I would simply invite them to visit Stop and Shop in Hampton Bays, right behind the McDonalds.
By VOS (1114), WHB on Apr 16, 18 11:27 PM
No carpet bagger developer has the RIGHT to a change of zone VOS, as stated here a PDD needs a super majority and a Board member may vote his or her conscience without explaining why they voted the way they did. Hissey lost, thank God, time to move on to the next bit of devastation.
By bigfresh (3679), north sea on Apr 17, 18 5:54 AM
The Town Board can decide however it wants on a PDD, there is no requirement for them to even justify their vote. That's how the law is written. Just another entitled developer with deep pockets pushing a frivolous lawsuit through the courts as a scare tactic. Your proposal was voted down, time to move along. No one has forgotten your unabashed threats. And nobody likes a bully.
By eagleeye (59), Sag Harbor on Apr 17, 18 12:18 AM
A certain obligation exists to consider the findings of the environmental impact statements in making the decision. It seems to me that having two board members make statements that indicated they disregarded the scientific evidence in favor of their personal opinions may be problematic for the town.

This suit is hardly frivolous and may represent a similar abuse of the PDD law that was perpetrated by the town in the McDonalds/Stop and Shop/Medical buildings suit a decade ago.
By VOS (1114), WHB on Apr 18, 18 2:00 PM
You may be right in administrative matters where decisions deemed "arbitrary and capricious" are overturned, but PDD law said the TB "may" approve a zoning change not "shall."

There is no checklist that will guarantee approval, just a list of pre-requisites to approval, the choice to accept or deny an application that fulfills those requirements is a political one.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 18, 18 3:39 PM
... why didn't you go down the "simple majority" path from the get-go? Your liquor tab alone from this PDD thing had to be off the charts.
By William Rodney (502), southampton on Apr 19, 18 1:51 PM
Yet another shameful multimillion dollar lawsuit bc they can’t have it their way! Disgusting
By toes in the water (673), southampton on Apr 17, 18 7:03 AM
2 members liked this comment
Since when is it unconstitutional to vote in accordance with your concerns about the environment??? Are they kidding with this lawsuit?
By CNappi (3), East Quogue on Apr 17, 18 8:05 AM
I especially liked this part: "their votes were cast for the illegitimate purpose of assuaging a loud and vocal minority or project opponents.”
And then the election happened and Julie Lofstad and Tommy JS, both anti-Hills PDD, won by a lot.
By Craigcat (241), Speonk on Apr 17, 18 8:24 AM
1 member liked this comment
I didn't get my way, I'm going to sue
By Aeshtron (130), Southampton on Apr 17, 18 10:39 AM
1 member liked this comment
. My Randall Lane well was polluted in 1962. My neighbor to the north west cesspool was flowing into our well being down only 15 feet. The water was gray, filmy soapy looking. The health dept. got involved. . After drilling down another 100 feet or so said it was safe to drink.. In the 1980 we finally got street water when 10 homeowners agreed to pay the $50,000 to bring the pipe here...Now there are many more home with cesspool since the 1960's and frankly we are all guilty of polluting ...more
By Histerical (20), East Quogue on Apr 17, 18 10:43 AM
1 member liked this comment
Mr. hissy is correct these to cancel people only ran to shoot this project down. It is very clear that the restrictions put on the golf course and the ongoing monitoring of runoff was more than adequate. This was not about the water it was a few Wing nuts that want to keep this neighborhood all to themselves and not grow responsibly.
By widow gavits (208), sag harbor on Apr 17, 18 5:20 PM
1 member liked this comment
Responsible development = a golf course over an aquifer, used by people who are not, will not be part of the community? The demand for the Hills is external, meaning if you build it they will come. There is no organic demand for the Hills. With land in short supply out here, the Hills is the opposite of smart growth. The Hills is a resort community. You may like that model, but please don't compare it to anything resembling responsible growth when the target market will be imported.
By Craigcat (241), Speonk on Apr 17, 18 6:17 PM
The suit has no merit.
By bigfresh (3679), north sea on Apr 18, 18 5:34 AM
1 member liked this comment
The defense to defamation claims is truth.

Do you think Alex Jones can demonstrate he was telling the truth when he claimed that the families were crisis actors and they didn't actually have to bury their kids?

Do you think that being called a liar and crisis actor while grieving would be likely to cause emotional distress?
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 18, 18 6:02 AM
Golf at the Bridge, which lies on top of the aquifer utilizes natural techniques and has monitoring wells all around. Guess what. No issues... I don't blame the developer as if any of the home owners were continually blocked by their neighbor guess what, they would sue too. Its as of right and is going to cost you me and everyone else our paid in tax money to defend.
By North Sea Citizen (499), North Sea on Apr 18, 18 6:28 AM
1 member liked this comment
Actually the Hills application was not as of right, it was a PDD, which this board had earlier determined to be an ineffective and not clearly defined zoning tool. This PDD ultimately approved or not approved at the discretion of the town board. In this case not approved.
Now the developer is attempting to circumvent the TB by bringing this new proposal to the zoning board, and IMO looking for more leverage with this suit.
It's pretty consistent with the MO when you consider how every "public ...more
By Craigcat (241), Speonk on Apr 18, 18 7:51 AM
Please explain how building a golf course in a 5 acre zoned area is "as of right". Thanks
By bigfresh (3679), north sea on Apr 18, 18 6:35 AM
1 member liked this comment
I laughed after everyone did the same fight against Southampton pines when a golf course was proposed there with 80 condos, Rego and Malloy gave up that fight and we got 120 homes that drains the town systems and schools. People never learn. They will build on that land either 130 houses (as of right) that will tax our local schools and services or what is proposed that will have little effect on our local government. Also the contamination in East Quogue is because of a chemical that was used in ...more
By Remsen (68), Southampton on Apr 18, 18 9:35 AM
Valid points, but DLC is still going for a golf course by way of planning board. We'll see where this ends up. With the restrictive zoning in the APOD in East Quogue, I'm not sure what kind of market there will be for houses.
Again though, the town board voted on a PDD application and did not receive the needed super majority. I think we need to look at that and filter out the noise. Would it be appropriate for a town board to vote in favor of a PDD, which they have already determined to be ...more
By Craigcat (241), Speonk on Apr 18, 18 11:41 AM
I laughed after everyone did the same fight against Southampton pines when a golf course was proposed there with 80 condos, Rego and Malloy gave up that fight and we got 120 homes that drains the town systems and schools. People never learn. They will build on that land either 130 houses (as of right) that will tax our local schools and services or what is proposed that will have little effect on our local government. Also the contamination in East Quogue is because of a chemical that was used in ...more
By Remsen (68), Southampton on Apr 18, 18 9:35 AM
Your local officials who voted the PDD down did you no favors. That original plan was for a SEASONAL resort with no impact on the schools. Despite that the developer had many Community Benefits built in to the plan including money for the school district. The modern sewage treatment plant would have been much better for the environment than 120 individual cesspools draining into the aquifer. The plan for the golf course to use the water from the nearby farms would have further filtered out the fertilizers ...more
By skipolsen (1), Calveron on Apr 19, 18 11:34 AM
Who’s their lawyer, Michael Cohen? I ask this again, as I asked it before, because this suit by Discovery seems like exactly the sort of law-by-intimidation that is associated with Michael Cohen in the public mind. That’s how these guys roll. Real estate ain’t beanbag.
By Turkey Bridge (1861), Quiogue on Apr 18, 18 10:45 AM
Steven Barshov, an attorney with Sive, Paget & Riesel P.C. in New York City.

It's in the article.
By Fore1gnBornHBgrown (3901), HAMPTON BAYS on Apr 18, 18 10:50 AM
Showing your true colors aren't we now, Discovery Land? Julie Lofstad and John Bouvier were both voted in by the PEOPLE who did not want the Hills. Take the hint Discovery.
By LocalEnthusiast (20), East Quogue on Apr 18, 18 11:17 AM
TurkeyBridge,

If you check carefully, you will find that DLC is using their usual law firm,
Dewey, Cheatum, and Howe, offices in Boston and New York.

They have a strong legal team consisting of Huey, Dooey, and Louie., Esq.

All three are graduates of Trump University, with degrees in BS, MS(more of the same), and PHD( piled high and deep)
By HamptonClassic (64), Southampton on Apr 18, 18 1:45 PM
120 homes 276 school age children. This may lead to EAF part 2 question 17, increase in more than 5 % population is a major impact to the community. The burden is on the developer to reduce the impact.
By emos (2), brookhaven on Apr 18, 18 7:25 PM
All of these reactions...and nobody has blamed Lee Zeldin yet?? Oh my. It's a miracle!!
By DiseaseDiocese (150), Riverhead on Apr 21, 18 10:36 AM
It's also wild that the new group exploring the incorporation of East Quogue thought it was a good idea to include Jessica Insalaco (A Discovery Land Employee) as a committee member. How nice of Jessica help us decide on incorporation AND assist with a 100 million dollar lawsuit against us. Busy!
By adlkjd923ilifmac.aladfksdurwp (554), southampton on Apr 25, 18 9:25 AM
Hampton Bays Rotary, Autumn Evening by the Sea, Joyce Oakland, Oaklands Restaurant