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Dec 10, 2018 11:43 AMPublication: The Southampton Press

Pine Barrens Society May File Lawsuit Against Southampton Town ZBA By Week's End Over Golf Course Decision

Pine Barrens Society President Dick Amper. PRESS FILE
Dec 11, 2018 1:43 PM

The Long Island Pine Barrens Society may go to court seeking to overturn a recent decision by the Southampton Town Zoning Board of Appeals, which cleared the way for a private 18-hole golf course on a luxury housing development in East Quogue.

The organization’s president, Dick Amper, said on Thursday, December 6, that he will be meeting with the nonprofit’s board of directors this week to discuss filing an Article 78 lawsuit—which, rather than seeking monetary damages, simply asks the court to overturn municipality and regulatory board decisions.

He said the potential suit would focus mainly on what he said is the ZBA’s blatant disregard for the language in the town code, which he said precludes a golf course as an accessory use. He added that the lawsuit, if filed, likely would list multiple petitioners, including the Pine Barrens Society, the Group for the East End, local residents and, potentially, civic groups.

“Everybody hates it,” Mr. Amper said of the ZBA decision, “so I think there will be a long line of people willing to come forward.”

The deadline to file a challenge is Saturday, December 15, which marks 30 days after the ZBA’s decision to allow the golf course to be built as a recreational amenity to a proposed 118-unit residential subdivision off Spinney Road. The resolution was approved, 5-2, with only ZBA Chairman Adam Grossman—who said last week that he is anticipating a court challenge—and board member Helene Burgess dissenting.

The developers behind the project, Arizona-based Discovery Land Corporation, revised their strategy last year after the Southampton Town Board voted down a nearly identical proposal, “The Hills at Southampton.” The original plan called for a change of zone, creating a planned development district, or PDD, which would have allowed the Town Board to sidestep zoning regulations, paving the way for the developers to build the golf course as a public membership amenity.

The proposal now under consideration uses an interpretation of existing zoning—via a planned residential district, or PRD—to allow a golf course to be used only by the development’s residents and their non-paying guests.

Mr. Amper has repeatedly argued that Discovery Land would not have spent four years initially seeking a change of zone if it wasn’t necessary to build the development and golf course, since current zoning precludes it. He said that the lawsuit would focus mainly on the ZBA’s interpretation of the zoning code—particularly Section 330, which spells out what constitutes a “subordinate, customary and accessory use.”

“If the use is not specifically stated in the code, it is to be considered a second primary use,” Mr. Amper said. “That’s our argument, and I would be surprised if it didn’t move forward.”

The zoning code, which lists the permitted uses as residence uses, residential community facilities, general community facilities, business uses, industrial uses, and accessory uses, reads: “all unlisted uses are prohibited.”

However, according to Southampton Town Planning Board Chairman Dennis Finnerty, there is no set list as part of the town code that specifically lists every permitted accessory use.

Additionally, Mr. Amper said the lawsuit would likely reference other chapters of the town code, such as Chapter 247, or what’s commonly referred to as the “Open Space Law,” or “Cluster Law.”

The law, which echoes state law, requires houses or residential buildings to be clustered together to allow for more contiguous open space to be created. It also states that a minimum of 65 percent of the property in question must be preserved as open space.

The proposed golf course is estimated to sit on roughly 91 acres of the 591-acre parcel, and, according to Mr. Finnerty, is in full compliance with that requirement.

However, the town 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.”

The applicant argues that it has preserved 65 percent of the property and does not include the golf course in that calculation. But opponents say that, by default, the golf course must be considered part of the open space set aside by the subdivision process.

New York State Assemblyman Fred W. Thiele Jr.—the author behind the enabling legislation—has repeatedly argued that a golf course is considered active recreation and is therefore prohibited in preserved open space, which allows only passive uses.

Another aspect that Mr. Amper said would likely be argued in the lawsuit is the ZBA’s lack of deliberation when drafting decisions on applications in front of the board. It’s a policy that Robert Freeman, executive director for the State Committee on Open Government, has said could be in violation of the state’s Open Meetings Law, which requires all “deliberation” by a quorum of members—every substantive discussion that leads to a vote, not just the vote itself—to take place in public.

In lieu of public deliberation, Assistant Town Attorney Kathryn Garvin sends a private email to each individual board member, asking whether they are in favor of or opposed to the application. According to Mr. Grossman, board members typically respond with a simple “yes” or “no,” and then the written decision—which is strictly derived from the testimony submitted by attorneys arguing in favor of and against the application—is prepared. The vote is then held in public.

“That’s bad government,” Mr. Amper said. “The most outrageous part is the ‘yes’ and ‘no’. Meaning, [Ms. Garvin] is inventing the rationale for the decision—it’s not coming from the board members at all. They’ve really taken themselves out of the decision process altogether.”

Mr. Freeman, who offers legal opinions and advice on matters of access to government meetings and documents, said last week that should a court agree that the ZBA’s actions were in violation of the Open Meetings Law, a judge would have the authority to invalidate the board’s decision.

The Article 78 lawsuit wouldn’t be the first targeting the town in regard to Discovery Land’s application. Last year, the developers filed a $100 million lawsuit against the Town Board, specifically targeting board members John Bouvier and Julie Lofstad, who voted against the PDD, which required four votes to be approved, but came up one vote short, 3-2.

Southampton Town Supervisor Jay Schneiderman said he sought advice from lawyers representing the town’s insurance carrier, who told him to stay mum regarding the possible lawsuit—a decision that Mr. Amper said was a ploy to push Discovery Land’s proposal through.

“The fact of the matter is, I think this was an end-around,” Mr. Amper said. “[Mr. Schneiderman] aided and abetted, and he’s trying to reverse the decision of the Town Board.”

Mr. Schneiderman, who could not be immediately reached on Monday, has repeatedly rejected Mr. Amper’s accusations, noting that he has stayed out of the application entirely while it was before the Zoning Board of Appeals.

In regards to the potential lawsuit, Carolyn Zenk, a Hampton Bays environmental attorney who most recently represented the Pine Barrens Society and the Group for the East End, said, “I can’t believe that this needs to be challenged. I think it’s sad when civic groups need to defend the town’s laws, but that may be what is necessary.”

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This might just work!
By bigfresh (4150), north sea on Dec 10, 18 5:27 PM
Here comes VOS in 3----2----1-----
By bigfresh (4150), north sea on Dec 10, 18 5:27 PM
Give it up ! The residents of EQ want the hills project to go forward. The rest of the town should stay out of it.
By left eq (28), Southampton on Dec 10, 18 5:50 PM
This resident of EQ is against the hills project!
By crusader (390), East Quogue on Dec 11, 18 6:00 PM
Fact is, left eq, this comment board has a bad enough reputation for idiocy already without your coming on like a six year-old. You’re wrong about what EQ residents want here, but even if you were right about that, it’s your claim that “the rest of the town should stay out of it” which really shames you and this forum.

Do you have any idea, any inkling, of how ignorant that statement of yours is? The surface water and groundwater damage this project will cause ...more
By Turkey Bridge (1921), Quiogue on Dec 10, 18 10:09 PM
1 member liked this comment
Once again, Mr. Bridge, you have made a declaration that a development of the subject property, as proposed, will cause damage to surface and groundwater and once again you must deny the science in every document in every review prepared about the project to do so.

You chide another to "learn a little bit about the scientific facts here" as you disregard those facts yourself. Joseph Goebbels is supposed to have said: "If you repeat a lie often enough, it becomes the truth. If you tell ...more
By VOS (1169), WHB on Dec 11, 18 7:27 AM
2 members liked this comment
Sorry Turkey an article 78 is a waste of time. They went to the ZBA and won by a strict definition of the law. The courts know an environmental group are using the courts to slow a project. 600 acres for 100 houses? Please stop when the average house in East Quoque is on half an acre.
By chief1 (2634), southampton on Dec 10, 18 11:19 PM
If the existing condition is woodlands and/or meadows, any golf course, no matter the environmental processes and safeguards will have a negative impact on groundwater.
By Aeshtron (312), Southampton on Dec 11, 18 9:56 AM
1 member liked this comment
to state "everybody hates it" erodes credibility and shows desperation. agree with VOS on this one that large portion of EQ residents are squarely in favor. And before the conspiracy theorists weigh in - I have no connection to VOS or Discovery. Just tired of seeing project derailed by the vocal few and costing the community the perks originally offered. Bring in the dozers and break ground at first thaw.
By rockford (2), westhampton on Dec 11, 18 1:31 PM
Hmm.......seems the only comments you have made have to with the hills project. Apparently you have no opinion on anything else in SHT,
By crusader (390), East Quogue on Dec 11, 18 6:04 PM
This is not just about EQ! Aquifer and Bays are at risk to all east enders. Environmentalists who don't live in EQ have every right to protect all in surrounding areas. My donations are in the mail! Keep it up good guys!
By Taz (554), East Quogue on Dec 11, 18 1:51 PM
We had at least 5 environmentalists that live in East Quogue that were in favor of the golf course and the system that was devised to care for it.
By whp (21), East Quogue on Dec 11, 18 4:18 PM
Please let me know about the environmental impacts of:
Golf at the Bridge above the aquifer
Atlantic Golf Course over the potato fields
Sebonac Golf Course next to Cold Spring harbor and ends on Great Peconic Bay.

All three recently built and guess what, never heard a peep about environmental issues. All those CG want nothing but the best. All monitored no problem. But alas all private courses and guess what, so will Discovery be. Why? because you fought back the good will of ...more
By North Sea Citizen (520), North Sea on Dec 11, 18 4:31 PM
2 members liked this comment
The impact of a golf course on groundwater and the surrounding environment is to be compared with the "no action alternative". In other words, if a superfund site is remidiated and a golf course is built in its place then the golf course could have significant environmental benefits. On the other hand, a golf course built on previously undeveloped land will never be environmentally beneficial no matter what measures are taken. There was significant concern among many regarding water quality issues ...more
By Aeshtron (312), Southampton on Dec 13, 18 10:59 AM
Funny people in East Quoque think 100 houses on 600 acres sold to part time residents is a problem, but people living on a quarter acre year round are okay? I call bs
By chief1 (2634), southampton on Dec 11, 18 4:45 PM
Chief, that’s twice in this thread that you’ve brought up this false equivalency about houses and acres. You know that the property in question here is in the protected Pine Barrens Zone and that it’s also in the special Aquifer Overlay District. You’re well aware that entirely different standards apply in these protected areas than those which apply in the parts where houses are on quarter-acre lots. You know all this, so stop trying to fool the people.

Hey, whp, ...more
By Turkey Bridge (1921), Quiogue on Dec 13, 18 10:25 AM
1 member liked this comment