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May 15, 2018 4:53 PMPublication: The Southampton Press

East Hampton Town Pulls Law That Led To Lawsuit And Fixes It

May 15, 2018 5:41 PM

The East Hampton Town Board last week rescinded a law that had barred hotels and motels from offering takeout food services—and that had sparked a lawsuit by the owners of the Hero Beach Club in Montauk.

But at the same May 8 work session, the Town Board tweaked the law and re-adopted it, in one fell swoop.

The lawsuit filed by the Hero Beach Club was largely dismissed by a state judge last month, save for the question of whether the town had properly adhered to the requirements of the State Environmental Quality Review Act in its earlier adoption of the law.

To head off a ruling that could temporarily undo the law, the town rescinded it, amended the SEQRA determination and put it back in place.

“[The judge] issued a decision siding with the town on everything but the question of SEQRA, which he said we had to have an evidentiary hearing on,” Town Attorney Michael Sendlenski said this week. “Instead of going back, we rescinded and readopted it as a Type 1 and [negative declaration], because of course it has no environmental impact.”

The law, which was adopted in June 2015, amended the town code to allow small takeout food stores to have up to 16 seats for their customers. But in the law’s final two sentences, it also barred such takeout food stores from being operated within hotels or motels.

That final clause derailed an application by the owners of Hero Beach Club—formerly the Oceanside Motel, known for a large “smiley” face painted on one side of the building—that town officials had worried would effectively become the bar for a large social scene at the newly renovated motel.

Attorney Tiffany Scarlato, who represents Hero Beach Club owner Jon Krasner, said this week that the clause had clearly been added to the original law late in the game and had been intended solely to block her client’s application.

Last week’s rescinding of the law, and then re-adoption of it, she said, was just a desperate move by the town to undo the mistakes of the rushed tailoring of the original to head off the Hero Beach application.

“They are basically admitting that they adopted the law improperly, which is what we sued on,” Ms. Scarlato said. “The title of the law, the notices, the purpose statement, all said nothing about resort zoning and motels. Nothing. It was very clear that was an add-on targeted at my clients.”

The claim filed on behalf of Hero Beach Club had pointed out that the town had declared the law an “unlisted” action under the SEQRA guidelines, a designation reserved for minor actions or projects that have little chance of having broader impacts on the surrounding environment.

But SEQRA requires that any law that impacts more than 25 acres of land be declared a so-called Type I action, which requires a somewhat more in-depth look at potential impacts.

When the judge, Acting Supreme Court Justice John H. Rouse, raised the issue of determining whether the law would impact more than 25 acres—which it likely would, if it applies to all properties with “resort” zoning designations in the town—the town chose to just change the law rather than going delving into the detail.

The owners of Hero Beach Club have already taken another approach to providing food and drink service to their guests: applying for a small restaurant at the motel, which is an allowed accessory use.

That application, which is still pending before the Town Planning Board, has likewise been haunted by worries from town officials that its seemingly small resources will effectively become the bar for a larger social scene on the motel’s pool deck and broad lawn.

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