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Oct 15, 2018 12:52 PMPublication: The Southampton Press

ZBA Ready To Decide On East Quogue Golf Course

Carolyn Zenk, the attorney for the Group for the East End, reviews the plans for the 18-hole golf course and 118-unit subdivision on Thursday. VALERIE GORDON
Oct 16, 2018 1:54 PM

The Southampton Town Zoning Board of Appeals is expected to make a decision next month regarding whether a proposed 18-hole golf course should be allowed to be built as a recreational amenity to a residential housing complex off Spinney Road in East Quogue.

That decision will come down to a close reading and interpretation of several key sections of the Southampton Town code, and whether the developers behind the proposal, Arizona-based Discovery Land Company, have effectively demonstrated that a golf course is permitted by the existing language in the code.

Discovery Land failed to convince the Town Board to change the zoning on the property to clear a path for “The Hills at Southampton,” a golf course and 118-unit residential subdivision via a planned development district—a now defunct zoning tool that essentially allowed the Town Board to allow any use it chose on the property, in exchange for various conditions.

Now, Discovery Land maintains that a golf course used only by residents of a development is comparable to other recreational amenities, such as swimming pools and tennis courts, that are allowed under a little-used portion of the town code: a planned residential district, or PRD.

The golf course and housing development is now before the Southampton Town Planning Board, but it has asked the ZBA to answer this question: “Is applicant’s proposed 18-hole golf course, available only to the owners of the subdivision parcels and not to the public-at-large, customary and accessory to the 118-home residential subdivision, or does said golf course—together with the maintenance and operating buildings and structures that accompany it—constitute a second principal use?”

The ZBA’s members are expected to settle that question at a November 15 meeting.

But the question is a complicated one that involves close examination of the zoning code—particularly Section 330, which spells out what constitutes a “subordinate, customary and accessory use.”

Another element is what’s commonly referred to as the “open space law,” or “cluster law,” which echoes state law. The enabling legislation—which was drafted by State Assemblyman Fred W. Thiele Jr. in 1981 and adopted in Southampton Town in 1982—is intended to protect “natural” and “scenic” open space when residential subdivisions are created.

It characterizes open space—also referred to as a “common area”—by its “natural scenic beauty, or existing openness, natural condition, or present state of use [and] the conservation of natural or scenic resources.”

Consistent with state law, the town’s code also defines what uses may be approved for open space. It reads: “The Planning Board may approve recreational use, such as wooded park areas, bridle paths, hiking trails, beach areas, etc.” It goes on to say that “areas for active recreation which are to contain substantial improvements, structures, impervious surfaces and other alteration from their natural state shall not constitute open space.”

According to Mr. Thiele, a golf course is “active recreation,” and would require substantial alterations from the natural state of the land.

“The proper use of open space is clearly outlined in state law, as well as Southampton Town local law,” Mr. Thiele argued. “Golf courses simply don’t constitute such a use. A contrary interpretation would torture the meaning of the English language beyond all recognition.”

In addition to both local and state law, the golf course is proposed to be built in a 5-acre zone, the most restrictive in the town, as it permits only one home, along with one septic tank, per 5-acre lot.

These restrictions are in play mainly to preserve farmland and the Pine Barrens, and to protect groundwater, according to Carolyn Zenk, a longtime environmental activist and former Town Board member who helped lobby for the 5-acre zoning code in the early 1980s, before her term in town government.

Ms. Zenk, now a Hampton Bays-based environmental attorney, has repeatedly argued that the developer’s proposal is in violation of the zoning code, which requires that 65 percent of the property in question must be preserved as open space. The town’s cluster law essentially pushes the houses, or residential buildings, closer together to allow for more contiguous open space to be created.

For example, on a 100-acre property, 20 homes would be allowed in a 5-acre residential zone. Rather than each home being afforded a 5-acre lot, however, the homes might be built on smaller lots, totaling 35 acres, with the remaining 65 acres being preserved as a large open space area, Ms. Zenk said.

According to the developer’s plan, the 18-hole golf course will take up approximately 91 acres of the 591-acre parcel owned by Discovery Land. The plan depicts approximately 84 acres in the residential parcels, 19 acres devoted to roads and drainage, and 97 acres in common amenity area devoted to residential accessory uses—including the golf course. That leaves 390 acres of open space, representing 65 percent of the property, excluding the golf course, according to the Southampton Town Planning Board.

The adopted pre-application report, dated May 24, states: “The applicant’s proposed plan satisfies the 65 percent open space requirement pursuant to the PRD, or ‘cluster’ provisions of Town Code 247. In compliance with Town Code 247, these 390 acres—or 65 percent—will be preserved in their natural state and will not be used for any active recreation.”

According to Assistant Town Attorney Kathryn Garvin, the Planning Board is generally in charge of making determinations in regard to Chapter 247, and has repeatedly tried to redirect Ms. Zenk at several public meetings to focus specifically on Section 330.

Wayne Bruyn, an attorney with Southampton-based O’Shea Marcincuk & Bruyn, and who is representing the developers, agreed: “Everything else in front of the zoning board is irrelevant,” he said. “Carolyn Zenk is missing that.”

Opponents, however, say the golf course must be considered part of the property’s open space allocation—even if it’s outside the 65 percent already set aside—and must meet all of the rules associated in the code with open space in a subdivision.

Ms. Zenk said she is not convinced that the ZBA should make any determination on whether the golf course is an accessory use, as it is “illegal” under the town code.

She explained that every time the cluster law is used, it preserves the open space by pushing the houses to one side of the lot—in this case a 591-acre lot—with either a conservation easement or a scenic easement, which serve as templates detailing the restrictions that go along with the creation of open space.

“Essentially, once you create open space, are there going to be any restrictions?” Ms. Zenk asked.

In fact, the town’s conservation easement template—which defines an easement area as “an area of natural scenic beauty in its current, undisturbed and natural state”—has several restrictions that Ms. Zenk said “clearly” prohibit a golf course from being built.

Those restrictions read as follows: “1. no re-grading, or dredging shall be conducted on the premises and no fill or spoil should be placed thereon; 2. No topsoil-loam, sand, stone, gravel, rock of mineral shall be excavated or removed therefrom or placed thereon; 3. No trees, plants or other vegetation located thereon, shall be killed, destroyed, cut or removed, [nor] should any vegetation be artificially transplanted into the easement area; and 4. No fertilizer, herbicide or insecticide may be utilized within the said easement area.”

The scenic easement is nearly identical.

“This shuts it down,” Ms. Zenk said. “They’re illegal.”

Additionally, the easement template also states that the common area “will forever be kept open and free of all buildings and other structures,” therefore also prohibiting the proposed clubhouse, which includes 10 living units and consists of 4.3 acres, Ms. Zenk said.

“Since the 10-plex is illegal, it can’t be considered an accessory building,” she said, tying her argument back to the original question. “The ZBA has no discretion or power to amend the law.”

According to the Planning Board, there has not been a single golf course ever built within a 5-acre zone. In fact, the only form of golf allowed in a 5-acre zone is mini golf, which requires a special exception and is limited to a single acre.

However, at numerous board meetings, Mr. Bruyn has pointed to thousands of golf course communities and court cases that have found golf courses to be an accessory use. None, however, is in Southampton Town—although small private courses with as many as nine holes have been allowed on private properties.

“[Carolyn Zenk’s] argument is that the Planning Board never approved a golf course—and that’s true. Why is that true? Because they’ve never had a property that had the space and the ability to create such an outdoor recreation area,” Mr. Bruyn argued. “If you can have nine holes for five lots, why can’t I have 18 holes for 118 lots?”

Town code also appears to prohibit the building of the clubhouse. According to Section 330-10, residence districts table of use regulations, “multiple dwellings for three or more families is prohibited.”

The code defines an accessory use, building or structure as “a subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure”—in this case, the 118-unit subdivision.

It continues: “The term ‘accessory building’ may include a private garage, shed, playhouse, swimming pool, and private greenhouse. [It] shall not include any building with sleeping and/or cooking facilities.”

Mr. Bruyn has repeatedly argued that, under the town’s zoning code, a golf course is not specifically listed as a recreational use in the town code—but neither is it specifically prohibited. “Unless it is expressly prohibited,” he argues, “it’s allowed.”

However, as Ms. Zenk, and several other community members have routinely pointed out, the town code reads: “All unlisted uses are prohibited.”

The problem is, there is no set list that accompanies the portion of the code that specifically lists every permitted accessory use, according to ZBA Chairman Adam Grossman.

“The question is: How is that interpreted,” Mr. Bruyn asked. “Just because it’s not listed doesn’t mean it’s not a customary use.”

Members of the Planning Board have echoed Mr. Grossman’s statement in the developer’s pre-application. It reads: “Neither the town’s zoning code (Section 330-5), nor the Residence District’s Table of Use Regulations (Section 330-10) lists every permitted accessory use, building, or structure allowed in a [5-acre residential] zoning district, nor does the town code readily define a golf course.”

What is, however, defined in table of use, is miniature golf—which is, again, restricted to 1 acre and is considered a commercial use.

“There’s much to consider,” Mr. Grossman said on Friday, noting that the board is still planning to make a decision on November 15. He added that the board will be considering all of the testimony received. “It’s being looked at—so we have our work cut out for us.”

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I pulled into the parking lot of the dune deck. Right away 2 security guards came at me in a very demeaning and menacing manner. I don't think they have what it takes to mend into the community.
By Summer Resident (224), Southampton Town, NY on Oct 18, 18 11:47 AM
1 member liked this comment
East Quogue is surrounded with Farm land area similar to Sagaponack. The Farmbfields should be preserved and cherished, not spoiled with a golf course.
By photo (5), east quogue on Oct 26, 18 10:58 PM
1 member liked this comment
Just say, "NO"
By crusader (390), East Quogue on Nov 7, 18 10:04 AM