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East Hampton Town Failed To Defend Itself In ZBA Appeal

Publication: The East Hampton Press
By Rohma Abbas   Feb 26, 2013 5:00 PM
Feb 26, 2013 5:32 PM

East Hampton Town failed to send an attorney to court to defend a ruling by its own Zoning Board of Appeals about three years ago, resulting in a State Supreme Court justice’s order giving an applicant permission to build a home on wetlands in Amagansett—despite a ZBA vote denying the plan.

Amagansett resident Rona Klopman said she was “startled” to learn recently that construction is beginning on the lot. Ms. Klopman is president of Amagansett East, the civic association that represents about 315 homes in Beach Hampton, where the Ocean Lane lot is located.

“You would think that if the zoning board votes unanimously that it can’t be built, the Planning Department [says] that it can’t be built on, and they sue, that the town would defend their position,” Ms. Klopman said.

The town defaulted in responding to a lawsuit by Evelyn Clark, who sued after the ZBA denied her application for variances to build a two-story home on a 12,000-square-foot parcel on Ocean Lane that contains freshwater wetlands. The denial was issued on December 29, 2009, and State Supreme Court Justice John J.J. Jones Jr. ordered the ZBA to grant the requested variances on November 23, 2010, “upon the default of the respondent.”

When reached on Monday, Town Attorney John Jilnicki, who was not the town attorney at the time, said he doesn’t know why the town wasn’t aware of the deadline to respond to the lawsuit. “We’re actually trying to get to the bottom of that,” he said.

He stressed that conversations between the town attorney’s office, the ZBA and the applicant’s attorney were ongoing during the lawsuit, and the discussion included coming up with an alternate location for the house on the lot, he said. The court’s order to grant the variances and approve one of two versions of the plan proposed by the applicant caught town officials by surprise.

Once town attorneys realized they didn’t respond to the litigation by the deadline, they contacted the ZBA to see if it wanted to vacate the default judgment issued by the court. But the board did not wish to do that, Mr. Jilnicki said.

It’s doubtful that the lack of response was intentional, Mr. Jilnicki said. Asked if it was concerning to him, he replied, “Of course. ... That should never happen. The town should always respond.”

East Hampton Town Councilwoman Sylvia Overby said she’s aware of the situation and said it highlights the importance of the ZBA, since it ultimately decided not to pursue vacating the default judgment.

“I think my takeaway is that it’s very, very important to have the right people on the ZBA, because the ZBA is the group that is really making some major decisions on what East Hampton is going to look like in the future,” Ms. Overby said.

East Hampton Town Councilwoman Theresa Quigley, the liaison to the town attorney’s office, said she found the situation “extremely troubling” and has asked Assistant Town Attorney Robert Connelly, who is currently the town’s ZBA attorney, to look into the matter.

“There should be a record of what happened, and there doesn’t seem to be a record,” Ms. Quigley said on Tuesday. “Not having a record makes you say, what did seem to happen? And there’s all sort of possibilities, none of which is good.”

Mr. Jilnicki said the situation raises the issue of how to keep town residents informed about developments in court that might affect their communities. “I’m trying to figure out if there’s a way to make sure they’re aware of changes,” he said. “Unless you’re participating in litigation in some way ... I’m not saying being aware would change anything for a neighbor, but it should be something they’re aware of, I think.”

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From a review of the Court Orders available on-line through NYUCS e-Courts' website, the Petition for Article 78 relief was personally served on the Town Clerk's Office on January 27, 2010. A Motion was filed with a submission date on March 10, 2010, which resulted in Judge Jones entering an Order on May 24, 2010, directing the Town ZBA to file its Answer to the Petition "within sixty (60) days." The Final Disposition was not entered until November 1, 2010, when the Court determined that the Town ...more
By davbud (73), east hampton on Feb 26, 13 11:46 PM
Can Ms. Overby, if she is so aware of the situation, also comment on the fact that it is illegal, yes, illegal, for a governmental body to outright deny an application for a property owner to build on a "buildable lot" unless that entity (presumably the Town, in this case) is willing to condemn or purchase the property? The article doesn't say whether or not there was an offer to purchase the property or a suit pending to condemn in by the Town but, after seeing Deb Foster and Ms. Overby "at work" ...more
By Board Watcher (497), East Hampton on Feb 27, 13 2:02 PM
As a Board Watcher, perhaps you (Beverly?) already know that on July 1, 2003, the Town Board ordered an Appraisal of the subject parcel owned by Evelyn Clark, located at 9 Ocean Lane, Amagansett, for possible acquisition using CPF funds. The parcel is currently listed on the "CPF Project Plan" list of desired CPF purchases for open space. The vacant parcel currently has an Assessed Value of $1,200 (taxed as if it has a fairly low FMV of $150,000). I would like to know what became of the negotiations ...more
By davbud (73), east hampton on Feb 27, 13 3:13 PM
There is nothing that Councilwoman Overby stated that was about seizing property or acting illegally. It sounded more like she is very aware of our town code, our comprehensive plan and the wish of the people to continue to have HIGH property values. Asking people to abide by the “laws of the land” and ensuring that all people in the neighborhood are informed and the environment is protected has been her hallmark. Her very thoughtful comment that the ZBA have people on it that represent ...more
By ehranter (5), East Hampton on Feb 27, 13 5:39 PM
1 member liked this comment
I was being slightly sarcastic, Ranter. I know you are a fan. As a pure mouthpiece for Democrat Committeemembers and the Conservators, Ms. Overby repeatedly picked and chose who she "helped" and who she did not while she was on the Planning Board. I congratulate your luck in that arena as it was never a fair playing field when she was in charge and people who had the wherewith continually sued the Town to protect their own property rights, and won! For example ...I encourage you to keep digging, ...more
By Board Watcher (497), East Hampton on Feb 27, 13 6:31 PM
Board Watcher, you are going to have to be much less abstruse if anyone is going to be evaluate the merits of your reference to a purported "Federal lawsuit that loomed over [the Evelyn Clark] application." Surely you are not referring to the Koncelik family land development litigation in the mid-1990's are you? David Buda
By davbud (73), east hampton on Feb 28, 13 1:33 PM
No I don't ... just ask Sylvia Overby if you're really interested. And if she was really interested in what's best for the Town instead of playing Dem mouthpiece she would come forward and say it instead of spinning, spinning, spinning and making people like you believe the hype ...
By Board Watcher (497), East Hampton on Feb 28, 13 1:51 PM
A CPF purchase presumes a willing seller. A "buidable" lot at that location is probably worth 5 times what the Town may or may not have offered the owner ... or perhaps they want to LIVE there ... so the owner doesn't want to sell, and then the Town (illegally) denies ANY permit - are you beginning to understand where the screwing begins, Mr. Buda?
By Board Watcher (497), East Hampton on Feb 28, 13 4:43 PM
This matter just gets more interesting all the time. County Deed records indicate the subject parcel was purchased by Evelyn Clark from the County of Suffolk on September 24, 2007, for $1,964.31! This was apparently a Tax Lien Foreclosure Sale parcel acquired by the Suffolk County Treasurer some time before. So why wasn't it able to be acquired by the Town of East Hampton as Open Space in 2003 when a Appraisal was ordered by Resolution 2003-895 (offered by J. Potter, and seconded by D. Weir) ...more
By davbud (73), east hampton on Mar 1, 13 10:17 AM
I suppose the 2007 Deed transaction was merely the redemption of a Tax Sale Certificate by the prior owner(s). Still I would like to know the course of the negotiations by the Town to acquire this "Small Lot" for open space. David Buda
By davbud (73), east hampton on Mar 1, 13 10:31 AM
I don't think you're really that dense, Mr. Buda. Again, you're focusing on the wrong "process" - negotiations are useless unless someone wants to sell, or it becomes a "taking". The "taking" is done by decisions and unlawful actions by a government that abrogate private prioperty rights. Ask Councilwoman "NO"verby about this ... her, some of her cronies and Deb Foster were experts at it. The Federal lawsuit was filed against the Town - perhaps Ms. Overby could get you a copy of it to save you ...more
By Board Watcher (497), East Hampton on Mar 1, 13 12:15 PM
what federal lawsuit are you constantly referring to?

please provide some info so peole can understand what you are talking about.
By tm (158), mtk on Mar 1, 13 2:15 PM
Call your councilperson ... or perhaps this reporter could. After the ZBA said "no" the owners filed a suite against the Town that they most likely ultimately would have won. Why take my word for it?
By Board Watcher (497), East Hampton on Mar 1, 13 6:55 PM
I'm waiting ... and would ask this newspaper to do a little investigating before they run an article that makes them, too, just another mouthpieces, dupe and pawn for the likes of Klopman, Mazur, Overby, Chris Kelley, David Gruber, the "conservators"... and the Dem Committee. There are plenty of intelligent, thoughtful, fair, registered Democrats in this Town that do not ascribe to these unfair, "undemocratic", unconsitutional tactics....
By Board Watcher (497), East Hampton on Mar 2, 13 3:47 PM
I, and others, are still waiting, however, not so patiently any more, for you to prove you are not just "blowing smoke." Real Federal litigation is easily researched, once one has an actual party's name as a starting point. So just who is your "poster boy" Plaintiff, or is it all just a figment of your imagination? As my CivProc professor used to say: "Tell, tell, tell! David Buda
By davbud (73), east hampton on Mar 3, 13 8:59 AM
that's funny - my journalism teach used to say "ask! ask! ask!"
By Board Watcher (497), East Hampton on Mar 3, 13 10:19 AM
I wouldn't know about that, Mr. Buda, but I see you "blowing smoke" on LTV all the time. Since you are not so shy, please publicly ask Ms. Overby what the real scoop is, or how to FOIL the suit that was brought against the Town. Presumably, as you pointed out, the Plaintiff's name will be "Clark". I guarantee you - is there. And I would be VERY INTERESTED in Ms. Overby's public answer ... or if Ms. Kloppy was aware of it, and they still pull these political shinnanigans. Thanks for doing the ...more
By Board Watcher (497), East Hampton on Mar 3, 13 10:09 AM
And let's not forget what the POINT is here - these were political shinnanegans orchestrated by "Noverby" and Klopman. They should be very ashamed and the public and press should be VERY wary when their mouths start moving.
By Board Watcher (497), East Hampton on Mar 5, 13 1:28 PM
It is apparent that something untoward occurred here but Board Watcher's irrational animus against Sylvia Overby (and the entire EH Democratic Committee) is also apparent. Before one puts any credence in her assertions or intimations, one should remember that this is the same woman who, along with her right-wing peers, predicted a landslide of defamation suits and wholesale indictment of Democrats in the Ronjo controversy last summer. Of course, absolutely nothing transpired, as rational, objective ...more
By highhatsize (2187), East Quogue on Mar 5, 13 2:49 PM
I don't know why you would assume I am a woman any more than, from your moniker, anyone would assume you are REALLY from Qougue and not a member of the EH Dem committee. HHS, your animus is, apparently, aimed at SHPD, based on facts you, presumably, research, and your observations of the politically-charged Town Board. You are entitled to that. It may appear to you that I have animus towards Noverby and her committee, but my comments are not "irrational" by any means. This very bogus article, ...more
By Board Watcher (497), East Hampton on Mar 6, 13 10:39 AM
The Landowner's attorneys (Esseks Hefter & Angel, LLC) filed the Article 78 Petition against the ZBA of the Town of East Hampton, only, in NY State Supreme Court on January 26, 2010, and personally served the legal papers on the Town Clerk, as agent for the ZBA, at 2:05 p.m. on January 27, 2010. The initial Return Date was March 4. The same Plaintiff's law firm then filed a second lawsuit in NY Supreme Court on April 6, this one naming the Town itself as the sole defendant, seeking monetary compensation ...more
By davbud (73), east hampton on Mar 6, 13 2:49 AM
I haven't watched the meeting yet but the "untoward' action was the ZBA's illegal decision to deny the property owner ANY USE of their buildable lot - without compensation from the Town. I'm not an attorney but since you, Mr. Buda, seem to be practicing law from the sidelines, can you please explain to HHS what the consequences of that "taking" would be ... I believe that is the issue. Also, as the former "Chair Noverby" of the Planning Board, (and VanScoyoc as former Chair of the ZBA) they know ...more
By Board Watcher (497), East Hampton on Mar 6, 13 10:18 AM
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