Three Lawsuits Filed Targeting Major Projects Recently Approved In Southampton Village

Dec 6, 2017 10:35 AM

Lawsuits have been filed targeting three major projects that were approved over the past two months by regulatory boards in the Village of Southampton, with opponents asking the courts to overturn the decisions.

Those filing petitions with the court have assailed the decisions on their merits, but in some cases they also are claiming ethical violations by regulatory board members during the decision process, which could have swayed the vote.

The Article 78 lawsuits—which seek no damages but, rather, court action to overturn the village regulatory boards’ decisions—targeted three projects: a plan to build a nearly 15,000-square-foot house and a guest house on an oceanfront property at 24 and 28 Gin Lane, approved by the village’s Board of Architectural Review and Historic Preservation; a plan to subdivide two properties at 550 and 554 Hill Street, including the former Despatch Self Storage site, approved by the Zoning Board of Appeals, a member of which, James Zuhusky, is the property owner; and the ZBA’s approval of a wetlands permit allowing an expansion of Mocomanto, a century-old Victorian home on Lake Agawam at 472 First Neck Lane.

In the lawsuits, the most notable allegations include what opponents say was a private meeting between the ARB chairman and an attorney for the applicants to discuss the Gin Lane project, and a string of emails between Mr. Zuhusky’s attorney and a ZBA member offering inside information about the discussion of the Despatch proposal among village officials.
 

24 and 28 Gin Lane
 

The Article 78 appeal in the Gin Lane case names the ARB, Senior Building Inspector Jonathan Foster, and the property’s listed owners, SH24 LLC and SH28 LLC. It was filed by Lynn S. Manger as trustee of the William M. Manger Trust, Top O’Dune LLC, and Pamela Michaelcheck, who opposed the project at 24 and 28 Gin Lane, owned by international investor Scott Shleifer. His plan is to build a nearly 15,000-square-foot home on an irregular-shaped 3.75-acre lot, along with a 5,055-square-foot guesthouse on 2.75 acres.

The petition alleges that ARB Chairman Curtis Highsmith met privately with the homeowner and Southampton Village-based attorney John Bennett to discuss the stance of the board. The meeting took place in May, according to the lawsuit, and was not mentioned in public until nearly three months later, on August 14.

“He claimed that he did so to express ‘the displacement of the community’ and the fact that the board was not in favor of the first submitted design,” the lawsuit read. “Mr. Highsmith claimed that before he met with the applicant and his attorney, he first spoke to the [ARB’s] attorney and the mayor. Neither confirmed that claim.”

At the meeting on August 14, Mr. Highsmith said he suggested to the applicants that they submit new plans to move the application forward. Opponents suggested that the comments showed he wanted to get things moving toward an approval.

The petitioners also said Mr. Highsmith would not allow any discussion that focused on the “size” of the house, explaining that it was beyond the scope of what the ARB looks at.

“It is nice that we have an open process, which offers a procedure for the public and/or applicants to file grievances against any decisions made by any given board, whether the nature of the complaint has any merit or not,” Mr. Highsmith said in a text message on Monday. “As for me personally, I am comfortable with the courts making its determination after fully reviewing all material and hearing all of the facts.”

Along with claims against Mr. Highsmith, the petitioners made various other complaints about the ARB decision, including that the design features of the home are incompatible with and inappropriate for the historic district it is located in, that the property owners altered the historical location of the structures that had been on the property, and that the board did not allow enough time to review the decision before voting on it on October 23.

The Village Planning Board is now reviewing the application. According to Jeff Bragman, an attorney representing those opposing the project, the main questions to be answered by Mr. Bennett and his team are how much fill will be used in the project, how the fill will affect the elevation of the home, and whether the home has an approved septic system.

The petition is expected to go before a Suffolk County Supreme Court justice on January 5.
 

Despatch
 

Another petition seeks to reverse the ZBA decision allowing Mr. Zuhusky, a sitting ZBA member and the owner of 550 and 554 Hill Street, to split the former Despatch Self Storage site into three residential parcels.

ZBA members Kevin Guidera, Mark Greenwald and Dan Guzewicz voted to approve the application. A fourth member, Dr. Robert DeVinney, was at the meeting but recused himself just before the vote without offering a reason. Mr. Zuhusky earlier had recused himself and did not take part in discussions of the project at ZBA meetings.

Mr. Zuhusky’s variances—a total of 17 granted by the ZBA—allow a subdivision creating three parcels that cover a total of 2.8 acres on a property that currently contains two houses as well as Despatch Self Storage—but a request to build guest homes on two of the properties was denied.

Islandia-based attorney Linda Margolin filed a petition seeking to reverse the decision on November 29 on behalf of neighboring property owners. She said ethical standards were violated when the application was in front of the board.

Mr. Zuhusky did the proper thing by recusing himself, Ms. Margolin said, but it was shocking when Dr. DeVinney declined to cast a vote at the last minute, just before the board voted to approve the application on October 26.

Attached to the lawsuit was a string of emails, obtained from the village through a Freedom of Information Law request filed by opponents, between Dr. DeVinney and Mr. Zuhusky’s attorney, Gil Flanagan, which took place in October and November 2016. The lawsuit said Dr. DeVinney volunteered information about a conversation he overheard between then-Planning Board member Warren Hamer and former Mayor Mark Epley about whether or not Mr. Zuhusky’s subdivision was illegal.

An affidavit, which was included in the lawsuit, was prepared by Dr. DeVinney and Mr. Flanagan, though not signed. In the affidavit, Dr. DeVinney said he overheard Mr. Hamer tell Mr. Epley that “the Zuhusky subdivision proposal is an illegal plan,” and Mr. Epley agreed that it was illegal. Dr. DeVinney said he heard in the conversation that “enabling a lot to take access from Captains Neck Lane allows an increase in the value of the lot, $3.5 million versus $1 million.”

“The applicant is Polish and [Stephen] Lemanski is Polish, each, however, is described with a vernacular term,” Dr. DeVinney said of the comments he overheard; Mr. Lemanski is a Planning Board member. “With three ivy leaguers and two locals on the board, the ivy leaguers will, of course, prevail over the locals.”

Even after working with Mr. Flanagan to put together the affidavit, the lawsuit said, Dr. DeVinney continued to participate in hearings and, presumably, deliberations, which it alleges is a violation of the state’s General Municipal Law and village code. The lawsuit also said Dr. DeVinney “displayed bias which tainted the ZBA’s hearings and determination and require the determination to be annulled.”

“DeVinney recused himself without explanation,” Ms. Margolin said on Tuesday. “He should have recused himself a year prior.”

Ms. Margolin said the timing suggests that between the closing of the public hearing and the closing of the written comment period, Dr. DeVinney must have learned that the emails would be exposed and decided not to cast a vote. “That’s speculation,” she added.

Calls to Dr. DeVinney were not immediately returned.

The petition is expected to go before a Suffolk County Supreme Court justice on January 12.
 

Mocomanto
 

The third lawsuit was by neighbors of the 472 First Neck Lane property known as Mocomanto. The petition was filed by Riverhead-based attorney Patrick Fife on behalf of Rosewood Realty LLC, Joyce Giuffra, Robert J. Giuffra Jr., and Whitney Stevens, on November 29.

On October 26, members of the ZBA voted to approved a wetlands permit that allows Ken Fox—a managing partner at the Stripes Group who has been instrumental in financing companies like Blue Apron, GoFundMe and Grubhub—to move one step closer to nearly doubling the size of his century-old Victorian home on Lake Agawam at 472 First Neck Lane.

The vote was 3-1 in favor of the project, with Mr. Guidera, Mr. Greenwald and Mr. Guzewicz voting for the property, and Dr. DeVinney voting against it.

Mr. Fox plans a 1½-story addition that would increase the gross floor area of the historic house by 52 percent, from 4,717 square feet to 7,190 square feet, which is 44 percent of the maximum allowed GFA of 16,071 square feet.

Petitioners claim in the lawsuit that “an extraordinary special wetlands permit to expand” Mocomanto was approved despite opposition from Suffolk County environmental groups like the Peconic Baykeeper, the Lake Agawam Conservation Association and the Group for the East End. The project was also scrutinized by local area civic groups like the Southampton Association, according to the lawsuit.

“The decision granted what was effectively the largest ever increase in structural coverage approved by the ZBA within the wetlands setback along Lake Agawam, and by far the largest total increase in structural coverage that could not otherwise be built on a property adjacent to Lake Agawam without first obtaining a wetlands special permit,” the petition read.

Throughout the hearings, which began on June 22, people who opposed the application spoke before the ZBA. Some of the main concerns included the health of Lake Agawam, which is one of the area’s most polluted water bodies, and the size of an addition that would nearly double the size of the home.

The addition was not under review by the ZBA, though the issuing of a permit to build within the wetlands setback was. Without going through the wetlands setback, the addition could not be built according to code, because the entirety of the nearly 130-year-old home sits within the wetlands setback.

There was a total of nine challenges presented by the petitioners, which include the ZBA’s failure to find any pressing economic or social need that outweighs harming the wetlands; that the number of bedrooms—which was determined to be nine—was incorrect; that the property does not have enough parking for 15 bedrooms, which is what the applicant said is the accurate number; and that illegal conditions on the property, like the installation of concrete tanks or a septic system in the middle of the property, and a pool house patio that was expanded in the wetlands without a special permit, was ignored by the board.

The lawsuit said the ZBA’s failure to look at these illegal activities in the wetlands was a violation of law and the decision should be reversed.

The petition is expected to go before a Suffolk County Supreme Court Justice on January 12.