Group Uses Letter To Argue Montauk Motel Abandoned

Neighbors of a defunct motel on Montauk’s Ditch Plains Road are saying they have new evidence that could keep a hotelier from opening his motel there.

They claim that property owner Sean MacPherson should not be permitted to run a motel in a residential zone, and that the motel’s pre-existing, non-conforming status lapsed when it became abandoned. The residents say they are mainly concerned that the motel use will add density to the residential area and cause further issues with wastewater runoff.

This week, attorney Christopher Kelley of Twomey, Latham, Shea, Kelley, Dubin & Quartararo LLP., which represents members of the Ditch Plains Association, sent a letter to East Hampton Town about what he calls a “smoking gun.”

The evidence is a 2005 letter from the former town fire marshal to the former owner of the property, Albert Forsberg. Mr. Kelley said the letter makes it clear that the property was legally abandoned. If the town finds that to be true, it would lose its motel use and revert to residential zoning, where motels are not allowed.

“We count on our town administrators and our board members to do the right thing based on the law and the facts in front of us,” Mr. Kelley said. “The right thing to do here is obvious.”

The 0.46-acre lot at 11 Ditch Plains Road has one single-family home and an eight-unit motel, which began operating in the 1950s and was later known as the Rogues Motel in the 1970s. A tax lien was placed on the property in 2009, and it was taken over by the county in 2013. Mr. MacPherson bought the property in 2014 and obtained building permits that allow exterior work, as well as painting and new windows and doors on the motel units. The building is still in need of a certificate of occupancy.

The property had been previously zoned for a motel, and when the zoning was changed to residential in 1984, the hotel was granted preexisting, non-conforming status, allowing it to continue to operate as a motel. However, once abandoned, a property loses that special status and converts to the underlying zoning use.

The association alleges that Mr. MacPherson cannot legally renovate a defunct motel on the site and operate it as a motel because the structure has been abandoned for at least five years. They say there is also a lack of evidence of water and electricity at the site. They also say the Building Department should not have issued building permits for renovation, and should not issue a certificate of occupancy.

According to Building Department records, the property still has an open building permit for the minor changes but failed final inspection in March because it needs to be regraded and gutter leaders need to be installed.

However, Mr. MacPherson contends that the structure has remained in limited use, saying someone had been living on the property for some time, which has allowed it to maintain its pre-existing non-conforming status. In addition, he says, the septic system on the property is sufficient and in good condition. Mr. MacPherson would have to replace it only if he were going to expand the structures. He said he has no plans of doing so.

The squabble got attention from the town earlier this year, when the town attorney’s office concluded that the town’s Zoning Board of Appeals should determine the property’s status, but the ZBA passed the matter back to the building inspector to make a determination, which is still forthcoming.

However, former Fire Marshal James Dunlop’s 2005 letter states that the building was unoccupied, the electricity was turned off and a complete inspection could not be done.

“Be advised that without proper electric power, this building may not be occupied in any fashion,” Mr. Dunlop wrote. “If and when electric power is restored in any part of the building, the entire building must be re-inspected.”

According to Mr. Kelley, there are no further documents relating to Mr. Dunlop’s letter except those that request a building permit and certificate of occupancy in 2014.

“If this isn’t evidence of abandonment, I don’t know what is,” Mr. Kelley states in his letter to the town attorney and the building inspector. “Had the previous building inspector [Tom Preiato] examined this file before issuing the building permits, he would have realized that the motel use had been abandoned.”

The current building inspector, Daniel Casey, was out last week and has not seen the letter, but Attorney Richard Hammer, who represents Sean MacPherson and 11 Ditch Plains Road, said he is confident that a certificate of occupancy will be given, although he had not yet seen the former fire marshal’s letter.

If Mr. MacPherson does not get a certificate of occupancy, he could challenge the town’s determination. If he is given a certificate of occupancy, it will mean an uphill battle for the Ditch Plains Association, according to Mr. Kelley.

“They would have to pay a lawyer to go through the process at the ZBA level or the Supreme Court or both,” Mr. Kelley said. “It would be a shame the burden should be on neighbors after they’ve shown evidence that has gone un-rebutted.”