UPDATE: Opponents Raise Concerns Over Southampton ZBA's Decision To Approve East Quogue Golf Course As Recreational Amenity

Several community members spoke out in opposition to the Southampton Town Zoning Board of Appeal’s decision to approve an 18-hole golf course as an accessory recreational amenity to a 118-unit subdivision in East Quogue on Friday.

Leading the argument were three environmentalists, Dick Amper, Bob DeLuca, and Andrea Spilka, each of whom made it clear that the ZBA’s decision, in their opinion, paves the way for “disaster.”

Mr. Amper, executive director of the Long Island Pine Barrens Society, said that in making the decision to approve the golf course, the ZBA made it clear that it does not “prioritize” protecting the environment.

He, as well as his colleagues, have repeatedly argued that the developers behind the proposal—Discovery Land Company—would not have spent four years lobbying for a change of zone at the Town Board level, if they didn’t need it in order to build their development.

“The fact that the ZBA said that they didn't need one in the first place is preposterous,” Mr. Amper said on Friday morning. “It’s a disaster. The message it sends is: ‘If you can’t get it through the legislative branch of government, try something else.’”

However, ZBA Chairman Adam Grossman, who voted against the proposal, noted that the Town Board’s decision to deny the developer’s PDD request last year, by no means plays a part in the ZBA’s interpretation of the Town Code.

“Just because the Town Board turned down the PDD does not bind the Planning Board or my board in terms of how we process this application,” he said.

The 16-page written decision, drafted by Assistant Town Attorney Kathryn Garvin, read: “This board rejects the assertion that deference must be given to the Town Board’s determination … since the Town Board considered a membership golf course open to the public rather than a private golf course.”

Furthering his argument, Mr. Amper pointed to the ZBA’s blatant disregard of several points made by Hampton Bays environmental attorney Carolyn Zenk, who repeatedly referenced the town’s “open space law,”—the original intent of which was to preserve natural and scenic resources within environmentally sensitive areas, such as the Pine Barrens, within Southampton Town.

“There was no legitimate rationale for approving it so they tried to duck [the open space law],” he said of the ZBA.

Ms. Spilka agreed: “To me, they were remiss in picking and choosing the parts of the law that they would look at. I think they abdicate their role as an appointed board when they do that.”

In a prepared statement on Friday, Mr. DeLuca noted that the ZBA “simply ignored the qualified testimony of expert planners who defended Southampton Town’s environmental zoning.

“Instead, the ZBA cloaked itself in the developer’s ‘voluminous’ submissions and citations from Webster’s dictionary, Google searches about golf course communities elsewhere on the planet, and Wikipedia,” he continued.

On Friday, Mr. Grossman would not comment on the ZBA’s decision to look outside of Southampton Town for examples of golf course communities, noting that the “decision speaks for itself.”

The decision read: “The Board may look outside of the Town limits to consider whether golf courses are customarily incidental accessory uses elsewhere in the country.” Citing Wikipedia’s defined term, ‘golf course community,’ “this board cannot ignore that golf courses are found elsewhere in the state and the country as an accessory use to residential developments.”

It also recognized that in Southampton Town, small private courses with as many as nine holes have been allowed as accessory uses on private properties. For example, a nine-hole golf course on the Cow Neck peninsula in North Sea, which, similarly to the East Quogue proposal, was built on a large and environmentally sensitive swath of land in a residential zone.

Moving forward, Mr. Amper could not confirm whether the Pine Barrens Society will pursue legal action, however, he did say that he would be “very surprised” should the organization’s board of directors “look the other way.”

“The war isn’t over by any means,” he said, adding that, in his opinion, the zoning board’s rationale will not hold up legally.

However, the rationale behind each individual board member is unclear.

As is its custom, the ZBA voted Thursday on a written decision that had been drafted in advance by Ms. Garvin. There was no discussion of the individual board members' votes at Thursday's meeting—and, in fact, no board member has discussed his or her views on the application at a single public meeting held prior to the vote.

The state's Open Meetings Law requires all deliberation,”—every substantive discussion that leads to a vote, not just the vote itself—to take place in public.

But the ZBA routinely sidesteps the law by never holding such a discussion when there is a quorum present. Instead, Ms. Garvin, the attorney for the board, meets individually with its members and drafts a written opinion based on what they have to say about the application. Then the vote is held in public.

However, when the developer’s PDD request was rejected by the Town Board, each individual board member offered a detailed analysis explaining the rationale behind their decision. Following that public vote, Discovery Land filed a $100 million lawsuit, in which those who voted against the proposal—board members Julie Lofstad and John Bouvier—were specifically targeted.

Mr. Grossman, who, on Friday, declined to offer his rationale for voting against the application, said that the ZBA, as a non-legislative body, is not bound by the same standards as the Town Board.

‘We have a different way of doing things,” he said. “There’s no requirement to do a public discussion of any kind.”

That process is of great concern to Ms. Spilka, who on Friday, said that in doing so, the ZBA has set a “bad precedent.”

“It was absolutely inappropriate that they didn’t come forward with their rationale,” she said.

The six board members—including Helene Burgess, who voted against the proposal—did not immediately return phone calls on Friday.

Another key point that was deemed as a deciding factor in the ZBA’s decision to approve the golf course, has caused much concern among community members.

Referenced several times in the 16-page written decision, was a 1998 New York State Supreme Court ruling, which allowed industrialist Ira Rennert, a Sagaponack homeowner, to build a “playhouse” as an accessory structure to his 57,770-square-foot home on Daniels Lane.

At that time, the ZBA ruled that the playhouse—which included a 10,000-square-foot recreational building, a 20-car garage, a 3,000-square-foot garden pavilion, a beach pavilion, guard houses and other accessory structures totaling approximately 38,000 square feet—constituted an accessory use under the Town Code.

It’s worth mentioning, however, that following that decision, the Town Board adopted limits on house sizes.

Still, Mr. Grossman argued that aspects of the Rennert decision, such as the size of the lot, were useful in analyzing Discovery Land’s application.

“Just because the Town Code is subsequently changed, doesn’t ify or make ineffective a prior ZBA decision,” he said. “That doesn’t mean that the decision doesn’t have any value any longer.”

On Thursday, the Southampton Town Zoning Board of Appeals ruled in favor of developers looking to build a 18-hole golf course as a recreational amenity to a proposed 118-unit subdivision off Spinney Road in East Quogue.

In a 5-2 vote, with only board member Helene Burgess and Chairman Adam Grossman voting against, board member Cornelius Kelly read from a pre-written decision that the regulatory board found the golf course to be comparable to other recreational amenities such as swimming pools and tennis courts allowed under a little used portion of the town code: a Planned Residential District, or PRD.

The question of whether or not the golf course as well as its accompanying maintenance buildings constituted as an accessory use, came roughly a year after the developers behind the proposal—Arizona-based Discovery Land Company—failed to convince the Town Board to approve a Planned Development District, or PDD, for their previous, nearly identical proposal, ‘The Hills at Southampton.”

The proposal was then modified to allow only the residents of the subdivision and their non-paying guests access to the golf course, whereas previously it would have been available to the public at large.

The ZBA was tasked with interpreting the “accessory use” portion of the zoning code after the Planning Board sought clarification as it reviewed the developer’s pre-application, which was approved, sans the pertinent question.

Currently, there is no set list of every permitted accessory use in the town code, according to Mr. Grossman.

Therefore, in the 16-page written decision, Mr. Kelly noted that as the town code does not explicitly prohibit a golf course as an accessory use, they chose to look at several examples of residential golf courses not just in Southampton Town but across the country.

The statement read: ““They are so commonplace that Wikipedia offers the defined term ‘golf course community,’ ”

Mentioned in the decision was an argument made repeatedly by Wayne Bruyn, an attorney at Southampton-based O’Shea, Marcincuk and Bruyn LLP and who represents Discovery Land. At previous board meetings he has pointed to a nine-hole golf course on the Cow Neck peninsula in North Sea, which, similarly to the East Quogue proposal, was built on a large and environmentally sensitive swath of land in a residential zone.

The ZBA found it to be comparable when considering the 591-acre swath of land, on which both the residential subdivision and the golf course would sit.

“This board finds that the size and scale of the proposed golf course with its membership restrictions render is subordinate and incidental to the 118-unit subdivision.”

In addition, the ZBA determined that the board has routinely approved other accessory structures and uses, which are not specifically listed in the code’s table of use regulations, including “an artist studio, sports, barn, and spa suites.”

“This board found that … under Town Code 330-10, customary accessory structures or uses are permitted in all residential districts unless they are expressly prohibited.”

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