Discovery Land Insists That 'The Hills' Won't Add Any Children To Local Schools

The developer behind a proposed luxury golf resort in East Quogue is confident that the development, which would be marketed as vacation homes to the über-wealthy, would not add any children to the East Quogue School District—even though it appears that school officials could not legally prevent that from happening.

Wayne Bruyn, an attorney representing the Arizona-based Discovery Land Company, explained recently that those who eventually buy the multimillion-dollar homes—assuming that the Southampton Town Board ultimately signs off on the planned development district that would clear the way for 118 residences, along with an 18-hole golf course, on nearly 600 acres—must sign a covenant capping the number of days they can occupy their units at 183 per year. Additionally, they would not be allowed to live in their homes for more than 30 consecutive days in the off-season, which runs from October until April.

That clause is also intended to prevent the future homeowners from enrolling their children in the fiscally challenged East Quogue School District.

The covenant, Mr. Bruyn explained, should prevent the future homeowners from establishing their East Quogue addresses as their primary residences, making it difficult for them to enroll their children in local schools. The district’s middle and high school students attend Westhampton Beach schools on a tuition basis.

“If you look carefully at what we always said, this is a seasonal resort, and the demographics of all of Discovery’s projects are that they are second, third and fourth homes for the owners of the properties,” said Mr. Bruyn, an attorney with the firm of O’Shea, Marcincuk and Bruyn in Southampton. “Therefore, we don’t expect anyone to reside on the premises and send their kids full-time to the district.”

He noted that the covenant, which would be enforced by a future homeowners association or possibly by Southampton Town, would be the first of its kind for Discovery Land. He added that the measure was introduced to quell the fears of those East Quogue residents who are worried that their elementary school would be overrun by new students.

None of the developer’s other 18 luxury communities has such a covenant in place because such concerns were never raised by neighbors of those developments, according to Mr. Bruyn. He said that is because most of the people who buy vacation homes built by Discovery Land live in large cities, like New York and Chicago, and that is where most of their school-age children receive their education.

Yet in spite of the proposed covenant and repeated promises that their project, dubbed “The Hills at Southampton,” will not add any students to local schools, Discovery Land officials cannot legally forbid the future homeowners from registering their children—regardless of how unlikely a scenario that may be.

School districts require only that a parent provide two proofs of residency, such as a property tax statement, or a utility bill, or a valid driver’s license with their local address, to enroll a child for school.

For newly constructed and newly purchased homes, permanent residency must be proven by supplying a district with three forms: a mortgage statement or deed, a contract of sale, and a mortgage commitment. There is no minimum required number of days a person must be living at an address before enrolling his or her children.

“If a student resides in the district, we are going to educate them—it could be one day,” East Quogue School Superintendent Robert Long said during a recent interview. “It just has to be their primary residence … Say they move to us from California—they would be able to attend school in East Quogue.”

Additionally, Discovery Land’s cap of 183 days has no bearing on whether or not a school district would be able to accept a child because, as noted by Mr. Long, there is no set number of days a child must live in a school district before being allowed to enroll in it. The 183-day figure was chosen, Mr. Bruyn said, because the Internal Revenue Service uses that number to determine primary residences for tax purposes.

Mr. Long was quick to note that, however, he has no reason to suspect that the future homeowners, if The Hills is approved, would be interested in enrolling their children in his district, explaining that it is his understanding that the units are being marketed purely as seasonal vacation homes.

Still, state education law appears to make it impossible for Southampton Town, or the community’s future homeowners association, to enforce such a covenant, as districts are legally obligated to provide a public education to all school-age children as long as they reside within the district.

The problem, as noted by Charles McNally, a spokesman for the U.S. Department of Housing and Urban Development, is that a developer can adopt covenants that make a community a seasonal one—though there does not appear to be any legal avenues for a developer to pursue that absolutely prohibits homeowners from enrolling their kids, if they ever decide to do so.

Project opponents—such as local environmental attorney Carolyn Zenk of Hampton Bays and Robert DeLuca, president of Group for the East End—have maintained that the proposed covenant, included as part of the development’s updated draft environmental impact statement, or DEIS, will keep new students out. In addition to not being legally binding, Ms. Zenk pointed out that the covenant would be enforced by the community’s homeowners association, as Southampton Town, which must only review and approve the wording of the document, currently lacks any authority to enforce its restrictions if they are ever violated.

“Mr. Bruyn makes it clear that the homeowners association will be the first line of defense to enforce these covenants,” Ms. Zenk said. “Since the residential units at The Hills at Southampton will be much more valuable if there is no residency restriction, the HOA has a direct vested [interest] in violating the covenant, not enforcing it.”

But the main problem, as noted by Ms. Zenk, is that the East Quogue School District—whose Board of Education was forced to pierce the state cap on the tax levy this year due to severe restrictions on spending—cannot legally turn away school-age children who live in the district if they seek an education, even if such action violates the covenant.

Both also suggested that the actual enforcement of the covenant, if it is ever tested, would likely result in a lawsuit that the homeowners association or town would lose, adding that the town could also potentially be on the hook for damages.

“Since children who reside in a school district have the right to attend local schools, should this covenant be violated, and should Southampton Town try to enforce it to keep children out of the school district, I believe they would face causes of action related to the violation of the civil rights of the families of these children,” Ms. Zenk said. “Ironically, such civil rights violations could cost the town millions of dollars.”

She added that the targeted school district—East Quogue in this instance—would be unable to turn away students if the covenant was ever violated.

Mr. DeLuca said he agrees with Ms. Zenk’s interpretation of the proposal, noting that those who attempt to enforce the covenant would be breaking the law.

“The challenge they have to overcome is that people always sign covenants and enforcement is an issue,” Mr. DeLuca said, explaining that a homeowners association would likely be more focused on making sure the day-to-day operations of the community go smoothly than focusing on keeping track of how many days their neighbors are actually staying in their homes.

It now appears that Southampton Town could be up to that challenge, with Town Supervisor Jay Schneiderman saying this week that if his board eventually approves the application, the town could be called upon to help enforce the covenant. “Thats one of many potential conditions,” Mr. Schneiderman said.

If such a condition is added to the application, Mr. Schneiderman said the town could potentially take offending homeowners to court if they violate the covenant by enrolling their children—even though he also thinks that such a scenario is unlikely.

“There is no indication at all that they are planning to [enroll their] kids,” the supervisor said, referring to the future homeowners, noting that they would still have to sign the document.

In its most recent DEIS, which was deemed incomplete a second time by the Town Board earlier this month, Discovery Land acknowledges that it cannot forbid children from living in the proposed community. “That perception is what drives people crazy,” Mr. Bruyn said. “People know that you can’t keep [children] out.”

The difference, he stressed, is that the families who traditionally purchase the high-end homes built by Discovery Land use them only as vacation destinations, staying only a few days or weeks at a time. Mr. Bruyn also made a point that those who own properties in one of Discovery Land’s 18 other luxury communities typically have primary residences in major cities and therefore have no reason to enroll their kids in East Quogue.

“That’s their demographics in their projects,” Mr. Bruyn said, referring to Discovery Land’s clientele.

He explained that none of the other luxury resorts built by Discovery Land, located across the continental United States as well as Hawaii and the Bahamas, relies on covenants to limit the amount of time homeowners can stay in their homes. In those communities, he said, residents make only short visits and are not permanent residents.

The developer’s most recent DEIS, submitted to Southampton Town in April, explains how the covenant is expected to work. It states: “For the East Quogue UFSD, no increase in enrollment is expected, as the nature of the project does not generate potential for such an impact. That is, any school-age children that may reside in the seasonal homes on the site will do so on a temporary basis, and so will not attend the local public school system. This will be enforced by a binding covenant filed with the county.”

Mr. Bruyn added that Discovery Land added the covenant to the East Quogue application only in response to concerns from certain community members who are worried about the 118 residential units, which would include 95 single-family homes, 13 clubhouse cabins and 10 clubhouse condominiums, just off Spinney Road in the hamlet. Discovery Land either owns or is in contract to buy nearly 600 acres, though most of the development, including the 18-hole golf course, would be centered on 168 acres.

In response to fears raised by Ms. Zenk and Mr. DeLuca, Mr. Bruyn said the covenant would “absolutely” be enforced by the future homeowners association. He added that residents would have to sign in every time they visit their homes, and that members of the board would handle situations if a resident ever decides to make their East Quogue address their permanent one. He also stressed that all future homeowners would be informed that they are buying into a seasonal community.

“It would be a seasonal property … it’s being sold to us as a resort property, not a year-round property,” Mr. Schneiderman said. “Sort of like a resort with a golf course. And I think if it’s approached like that, I don’t see why you would have a lengthy stay.”