East End Nonprofits Move Forward With Lawsuit Against Southampton Town ZBA Over East Quogue Golf Course Decision

The Group for the East End filed a lawsuit against the Southampton Town Zoning Board of Appeals on Wednesday, December 19, challenging its decision to allow an 18-hole golf course to be built as part of a luxury housing development in East Quogue.The Article 78 lawsuit—which, rather than seeking monetary damages, simply asks the court to overturn the regulatory board’s decision—has been in the works since the ZBA ruled in favor of the developers behind the proposed residential community, Arizona-based Discovery Land Company, last month.According to a copy of the lawsuit, provided by Group for the East End President Bob DeLuca, it focuses on three aspects: the ZBA’s interpretation of the zoning code, particularly Section 330, which spells out what constitutes a “subordinate, customary and accessory use”; what it says is the board’s disregard of the town’s “Open Space Law”; and the board members’ lack of public deliberation when making the decision, in violation of the state’s Open Meetings Law.Petitioners in the lawsuit include Mr. DeLuca and State Assemblyman Fred W. Thiele Jr., as well as Richard Amper, the executive director of the Long Island Pine Barrens Society; Albert Algieri, president of the East Quogue Civic Association; and East Quogue residents Susan Bailey, Ora Ruenzel Salmaggi, Marissa Bridge, Joseph Lamport and Elizabeth Jackson.Town code describes an accessory use as “a subordinate use, building or structure customarily incidental to and located on the same lot occupied by the main use, building or structure.” According to the petitioners, “the 18-hole golf course, mis-characterized by the Zoning Board of Appeals, is neither a subordinate nor incidental use.”The suit points to the town’s table of use regulations—under Section 330—which reads: “All unlisted uses are prohibited in all districts.” Fifteen permitted uses are identified under the table of use, including a private garage, shed, playhouse, swimming pool, private mooring dock, home professional office, and wind conversion systems. “Golf clubs or golfing of any sort is not mentioned,” the lawsuit reads. Southampton Town Planning Board Chairman Dennis Finnerty has previously said that there is no list, as part of the town code, that specifically lists every permitted accessory use. Several non-listed uses, including an artist’s studio, carousel house and beach pavilion, have been approved as accessory structures in the past, as explained in the ZBA’s 16-page written decision last month. The lawsuit also argues that the golf course is not on the same lot as the 118-unit residential housing development, and also is therefore prohibited. Additionally, the lawsuit references other chapters of the town code, such as Chapter 247, or what’s commonly referred to as the “Open Space Law,” or “Cluster Law.” The law, which echoes state law, essentially requires that developers push residential buildings together to preserve more contiguous open space. It also states that a minimum of 65 percent of the property in question must be preserved as open space.According to the developer’s pre-application, the proposed golf course will sit on roughly 91 acres of the 591-acre parcel off Spinney Road, and, according to Mr. Finnerty, the project is in full compliance with the requirement.Discovery has argued that it has preserved 65 percent of the property and does not include the golf course in that calculation. But opponents say that, by default, the golf course must be considered part of the open space set aside by the subdivision process.With that in mind, opponents argue that the town code also defines what uses may be approved for open space. It reads: “The Planning Board may approve recreational use, such as wooded park areas, bridle paths, hiking trails, beach areas, etc.” It goes on to say that “areas for active recreation which are to contain substantial improvements, structures, impervious surfaces and other alteration from their natural state shall not constitute open space.”Additionally, the lawsuit makes reference to the ZBA’s policy to individually poll board members via email, rather than have a public discussion by a quorum of members on applications and questions before the board. Earlier this month, Robert Freeman, executive director of the State Committee on Open Government, said that the board’s policy appeared to violate the state’s Open Meetings Law, or “Sunshine Law,” which guarantees that official business be conducted in an open and public manner—not just public votes but also public deliberation.“The sensitivity poised in the application required the board to be even more diligent and attentive to its legal obligation for public discourse and transparency,” the lawsuit reads, pointing to the environmentally sensitive swath of land owned by the developers. It also argues that board members did not offer comments or address public questions when casting their vote. The lawsuit says: “Questions of such import, which affect the health, safety and welfare of all town residents, and impact the Pine Barren lands and aquifer, as well as subsurface and aboveground tributaries, are questions of such great import that strict adherence to the New York State Open Meetings Law is mandated … mandating the annulment of the decision.”Discovery Land has steadfastly refused to comment on any new developments in its proposal in recent months.