East Quogue Exploratory Committee Files Lawsuit Against Schneiderman; If Approved, Village May Have Wide Effect On Golf Course Proposal

The East Quogue Village Exploratory Committee appears to be covering all of its bases in its attempt to give East Quogue residents the opportunity to vote on incorporating the hamlet into a village.

The committee recently filed an Article 78 lawsuit against Southampton Town Supervisor Jay Schneiderman in an effort to overturn his decision to invalidate a petition—signed by more than 20 percent of the hamlet’s registered voters, as required under New York state Village Incorporation Law, calling for the creation of the village.

Mr. Schneiderman rejected the petition in July, pointing to a separate list of regular inhabitants, which included the names of 34 deceased people among 3,428 residents.

The lawsuit is hard on the heels of the committee submitting a revised version of the petition, which excludes those inhabitants as well as 33 signatures that the supervisor had invalidated for several reasons, including one instance where East Quogue resident Steven Brash said that his name appeared on the petition but he had not, in fact, signed it.

Committee member Greg Celi, who has handled the committee’s public relations, declined to comment further on the litigation and the committee’s attorney, Peter Bee of Mineola-based Bee, Ready, Fishbein, Hatter & Donovan LLP declined to comment.

Additionally, an email sent to co-chairs Karen Kooi and David Celi, as well as committee member Jessica Insalaco, was not returned.

A copy of the petition, acquired through a Freedom of Information Law request to Southampton Town, revealed that the Article 78 also targets several East Quogue residents, including Mr. Brash, Elizabeth Jackson, Albert Algeri and William Kearns—representing the Long Island Pine Barrens Society—among others, who raised objections to the committee’s petition at two public hearings held on the subject.

The suit claims that Mr. Schneiderman’s objection to the petition was “illegal” and based on 34 “hearsay” obituaries, submitted by Mr. Kearns—and prepared by the society’s attorney, Jennifer Juengst—listing the names of the aforementioned deceased inhabitants.

Additionally, the lawsuit argues that no death records or certificates were submitted.

In a previous interview, Ms. Kooi maintained that the list was derived directly from the Southampton Town Tax Map as well as cross checked with the most recent voter registration data provided by the Suffolk County Board of Elections.

In fact, according to lawsuit documents, the 34 names of those deceased inhabitants are still currently listed on the voter records maintained by the Suffolk County BOE.

Mr. Bee reiterated Ms. Kooi’s argument in a letter, dated May 20, which he submitted to the supervisor at the second public hearing, held at the East Quogue Elementary School.

The Article 78 further reads that “even if the hearsay evidence could be relied upon … the alleged less than 1 percent error in the listing of regular inhabitants is de minimus or ‘nominal’ and is not sufficient to find the incorporation petition insufficient.”

In fact, Mr. Schneiderman explained in his written decision that, “despite his inclinations,” he was “constrained” by the restrictions set forth by the Supreme Court Appellate Division 2nd Department, which require village petitions to “be free from any imperfections.”

However, contrarily, the Appellate Division 3rd Judicial Department has recognized in similar decisions that “a list can never be done with absolute precision, calling such a list impractical to obtain.”

The same was true in a previous decision by former Southampton Town Supervisor Patrick “Skip” Heaney, who, when determining the sufficiency of a petition to incorporate the former hamlet of Sagaponack, determined the 2nd Department’s requirement to be “inadvertent” and a “practical impossibility.”

In his decision, he referenced a 1964 amendment to village law, which changed the requirement from “the number of regular inhabitants of such territory” to “an allegation that such territory contains a population of at least five hundred regular inhabitants.”

Additionally, the committee’s lawsuit claims that 19 of 34 deceased inhabitants had died between July 2018 and April 2019—after the committee began to circulate the petition in June 2018.

However, in a recent letter to the editor, Mr. Kearns argued that the 34 names of the allegedly deceased individuals was “way too big a mistake,” calling the committee’s latest attempts to incorporate the hamlet “nothing more than a half-baked, ego-driven power grab.

“It is a reaction to the golf course development in the Pine Barrens being defeated,” he said.

In fact, in previous interviews, Greg Celi has said that one of the main catalysts behind the committee’s formation was the Southampton Town Board’s handling of a proposal to build a luxury golf course resort off Spinney Road in East Quogue.

The original proposal, known as The Hills at Southampton, called for a 118-unit subdivision and 18-hole private membership golf course but failed to secure a necessary change of zone from the Town Board in 2017.

Following its rejection, the developers—Arizona-based Discovery Land Company—revised their proposal, limiting the golf course to the subdivision’s residents and their non-paying guests.

That proposal was recently deemed complete by the Southampton Town Planning Board after the board’s consultant, B. Laing Associates, determined that a supplemental environmental impact study was not needed in order to move forward with the project.

However, the committee’s push for a vote to incorporate the hamlet has raised a number of semantics questions regarding the golf course proposal, such as whether or not certain covenants and restrictions, put in place by the Planning Board, would transfer over to a Village Board, should the incorporation be approved.

Wayne Bruyn, an attorney with Southampton-Based O’Shea Marcincuk & Bruyn LLP, who is representing Discovery Land, wrote in a letter to the Planning Board last month that the developers will agree to uphold a covenant with the Town of Southampton, proposed under The Hills application, that prohibits full-time occupancy at the subdivision in an effort to minimize the development’s impact on traffic and the neighboring school districts.

According to New York State Assemblyman Fred W. Thiele Jr., if those covenants and restrictions are executed before the proposed village has zoning power, they would remain under the town’s jurisdiction.

Steven Barshov, an attorney with New York City-based Sive, Paget & Riesel—also a representative of Discovery Land—agreed that, if approved prior to the incorporation, the covenant’s would “bind” the property owner—in this case, Discovery Land.

“It would not matter that the village had been incorporated because by that point, the approval process is over,” he said. “Those things continue to be in full force and effect.”

However, there’s controversial theories over when the village would, in fact, have zoning power.

Anthony Tohill, the attorney for the Village of Sagaponack, which cut its ties from Southampton Town in 2005, said that for the first two years following the incorporation, the town maintains its control over the village’s zoning and land use regulations.

“Nothing happens—everything continues as if the village were not incorporated at all,” he said, adding, “There’s nothing that the Village of East Quogue could do to expedite its land use powers.”

However, an attorney, who spoke on background, noted that depending on the details, another attorney may have a different opinion and could possibly pursue litigation against Mr. Tohill’s interpretation.

In fact, Mr. Barshov offered a different interpretation of the Village Law: “I don’t read it that way,” he said.

The law reads that “for a period of two years after the date of incorporation, all local laws, ordinances, rules or regulations … shall remain in effect in such village … and shall be enforced and administered by the appropriate town officials.”

Mr. Barshov, however, referenced a separate section of the law, which states “that any such local law, ordinance, rule or regulation shall cease to be in effect in the village … when so determined by any general, special or local law, or when replaced by any general or special law covering the same subject matter.

It continues that “from the date of incorporation, the village may prepare and enact local laws, resolutions, rules, and regulations to be effective as provided in such local laws, resolutions, rules and regulations.”

Mr. Barshov explained that the town would only maintain its jurisdiction over zoning and land use should the village not make any changes within two years.

“The way I would interpret this is that it remains in effect up to two years, but that the village board may supersede it earlier,” he said. “It’s within that period of time that most villages will begin to get their feet wet and adopt their own laws,” he said.

Regardless, Mr. Tohill, said that the village’s power over land use would be moot should the application’s restrictions be approved in the form of a covenant.

“Covenants trump any land use regulations,” he said. “If the approval condition is expressed in a covenant, then that covenant surpasses the title to the land,” he said.

Southampton Town Planning Board Co-Chairman Dennis Finnerty explained that covenants are filed as a part of the application’s final approval process, noting that it’s “a ways down the road.”

One way to avoid that “hot potato,” as Mr. Tohill called it, would be for Discovery Land to withdraw its application from the town and resubmit it to the village, if approved.

If that were the case, Mr. Barshov said that the village would be able to adopt the Environmental Impact Statement, or EIS, that was recently deemed sufficient by the Southampton Town Planning Board; however, only if the project had not changed.

“That’s always an option, too,” Mr. Finnerty said.