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Apr 23, 2019 2:08 PMPublication: The Southampton Press

Rowan Files Fourth Lawsuit Against East Hampton Town Over Duryea's Lobster Deck

Renderings by representatives of Duryea's Lobster Deck of what the property where the new waste treatment system would look like before and after installation.
Apr 23, 2019 3:21 PM

Attorneys for Duryea’s Lobster Deck in Montauk have filed a new lawsuit asking a state court to compel East Hampton Town officials to allow the immediate installation of a new waste treatment system on the corner of the property containing the former Duryea family home.

The suit claims that when the town enacted laws in 2017 to encourage homeowners to replace aging cesspools and septic systems with modern systems that reduce nitrogen, it created an exemption from zoning requirements to expedite the approvals.

“When the town adopted their amendment to the code to encourage upgrades of septic systems, they adopted an exemption from all zoning review,” Michael G. Walsh of Water Mill, an attorney for Duryea’s owner, Marc Rowan, said this week. “Guess what Duryea’s is proposing: a septic upgrade.”

The lawsuit highlights the wording in the town code: “A building permit obtained solely for the purpose of repairing or upgrading to a low-nitrogen sanitary system … which complies in all respects with the current standards and requirements of the Suffolk County Sanitary Code and meets all current setbacks for such systems in the town code, or is being placed such that the location of the sanitary system will be consistent with the location of the current sanitary system in relation to setbacks, may be issued without town site plan review, special permit review or other local review.”

Mr. Walsh said that the current wastewater systems on the property are an amalgam of long-outlawed cesspools and somewhat newer standard septic tank systems scattered in different portions of the 3.9-acre property.

He said that shortly after filing a site plan application with the Town Planning Board that addressed a broader application to the town to legalize a restaurant on the land, he also filed an application for a building permit for the new waste treatment system. The application was left “collecting dust” by the Building Department, he said—leading to the lawsuit filed last week.

The town’s senior building inspector, Ann Glennon, said that despite the town code allowances for the new system, the Duryea’s application still needs the approval of the Suffolk County Department of Health for both the arrangement of the system and its location, which she said she has not received yet.

“It’s quite the system they are looking to put in, but that doesn’t mean the board of health is going to approve it,” she said. “Until I see that red stamp of approval, I can’t do anything. That’s why I have not issued the permit.”

The new lawsuit comes even as a judge is considering whether a settlement signed in January should be vacated and three other suits brought by representatives of the property’s owner, Mr. Rowan, shifted back to the “pending” column. The other three lawsuits challenged the town’s zoning authority over various other features of the property, until word came that East Hampton had settled the cases with a package of stipulations that seemed to concede to the property owner a host of new “as of right” allowances at the property.

Among the stipulations that drew the most outrage from local residents was a stipulation that seemed to give the owners the right to use a ribbon of property between the existing house and Tuthill Road for the installation of the new waste treatment system.

Mr. Walsh sought to soothe some of the outrage over the placement of the treatment system—known as a Fujiclean CEN21—which he said is misplaced because once the system is installed it will be completely buried and invisible.

Neighbors angered about the settlement had raised the specter of new retaining walls that would be required on the property to support the septic system, but Mr. Walsh said the landscape arrangement would be only barely distinguishable from what exists at the site. Existing stone retaining walls would be left “as is,” he said.

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