Pell Refuses To Recuse Himself From East Quogue Dock Application

Southampton Town Trustee Bill Pell will turn to the town’s Ethics Committee for guidance on whether he should recuse himself from reviewing an application now before the Trustees, one that he was highly critical of prior to being elected to the board.

Attorney John Bennett insisted last week that Mr. Pell recuse himself from reviewing and voting on an application submitted by his client, Dockers Waterside Restaurant and Marina owner Larry Hoffman, because Mr. Pell had publicly opposed the application—and needled Mr. Hoffman personally—while running for office several years ago. The restaurant and marina is located on Dune Road in East Quogue.

At a Trustees meeting last Wednesday, January 18, Assistant Town Attorney Kara Bak advised Mr. Pell that, in light of Mr. Bennett’s request, he should remove himself from the application review. But the second-term Trustee resisted, saying that his comments about Mr. Hoffman’s applications in the past were made before he was on the board and privy to some of details of the document.

“I think I can approach this with an open mind,” Mr. Pell said.

In 2009, a campaign flier sent out by Mr. Pell broadcast an appeal to voters to “Tell Larry to take a long walk on a short dock.” Those words were emblazoned across a photo of the Dockers property, nestled among tidal marshes on the southern shore of Shinnecock Bay. The flier was highly critical of the Trustees at the time for approving the addition of a dock with 16 boat slips to the property, and it stated that had Mr. Pell and his running mate at the time, Chris Garvey, been on the Trustees’ board, they would have rejected it.

In 2005, during his first of three runs for the Trustees before being elected in 2009, Mr. Pell wrote a letter to the editor that was published in The Press denouncing the Trustees for even considering a much larger expansion application for Dockers’ marina facilities, which was filed in 2003. That plan, which would have allowed for 54 boat slips and refueling facilities, ultimately was withdrawn by Mr. Hoffman amid widespread public opposition when it became clear the Trustees were not going to approve it.

The Trustees approved the pared-down 16-slip plan in October 2008 but were sued by the Peconic Baykeeper, a marine environmental advocate, to vacate the decision because the Trustees did not review the plan in accordance with the State Environmental Quality Review Act. The Trustees have refused to apply SEQRA guidelines to numerous applications in the past, because they say their board is exempt from such state controls because of its 17th century sovereign authority granted by the King of England and ratified in the New York State Constitution. Nonetheless, a judge ruled in February 2010 that the application before the Trustees must be vetted under SEQRA guidelines and ordered them to re-open their review.

Mr. Bennett blasted Mr. Pell last week for refusing to remove himself from the board’s review and asked the other Trustees to implore Mr. Pell to step aside. It was the first time, the former Southampton town attorney said, that he had ever encountered resistance from a member of a government regulatory board when he asked them to recuse themselves because of the potential for a perceived conflict, bias or prejudice.

“Mr. Pell’s extreme position on this, not to recuse himself, is what I would consider a red flag,” Mr. Bennett said. “It’s something I’ve never encountered in 30 years of practicing law.”

Mr. Bennett recalled an instance when he had served as town attorney that a federal judge who had been assigned to a case Mr. Bennett was handling recused himself because he and Mr. Bennett had attended the same cocktail party on occasion.

After the attorney asked the other Trustees to push Mr. Pell to recuse, the board adjourned from the meeting to discuss the matter with Ms. Bak in the town attorney’s office. When they returned, the Trustees announced that they were going to request an opinion from the town’s Ethics Board and adjourned the hearing on the Dockers application until that board could offer guidance.

Mr. Pell said on Monday that he will submit a letter this week to Town Attorney Tiffany Scarlato, asking that the Ethics Board issue an advisory opinion on whether he should recuse himself from reviewing the application.

“I don’t prejudge anything,” Mr. Pell said in a phone interview this week. “Every permit that comes in, I look at on all four sides of the situation. I ask experts their opinion, and sometimes I change my mind from what I think when I look at the permit.”

Ironically, Mr. Pell recused himself from the very next issue to come before the Trustees last week after the Dockers issue: an application by a young bayman to take over the oyster growing plots in Cold Spring Pond that Mr. Pell once worked. Mr. Pell said he stepped aside because he did not want it to appear that he favored one bayman over another regarding the awarding of the lease.

The seven-member Ethics Board does not meet regularly and is typically convened only when a specific issue is brought to them. Ms. Scarlato said this week that she would pass the request on to the Ethics Board’s attorney, Steven Leventhal of the Roslyn firm Leventhal & Sliney LLP, but did not know how soon the board would convene to review it.

After nine years and at least three revisions, the Dockers application is again on hold. The most recent application mirrors the one that the Trustees approved in 2008.

Mr. Hoffman’s original plans were much more grand. The Southampton Town Planning Board designated the property a “marina” in 1993, granting permission for dockage for up to 15 boats along the bulkhead that fronts the restaurant building and parking lot. In 2003, Mr. Hoffman, who has owned Dockers since 1990, first unveiled plans to add a series of docks extending from the bulkhead out into the boat basin to make room for up to 54 boats. The plan also carried sketches for a marina store, gasoline pumps for refueling boats, and dredging a 3,700-foot-long channel from the main navigation routes in Shinnecock Bay back into the Dockers basin.

The application was met with waves of opposition from nearby homeowners, environmental groups and commercial baymen, who worried that having a large marina at the property would lead the state Department of Environmental Conservation to close shellfishing on the vast nearby sand flats.

The plan was shelved in 2005 and, in 2006, Mr. Hoffman brought the pared down plan to the Trustees instead. The board quickly voiced its approval, though the idea of attracting more boat traffic to Dockers continued to draw criticism from Kevin McAllister, head of the Peconic Baykeeper, and some baymen. Mr. McAllister, in his public opposition and explanation for filing the lawsuit that would ultimately delay the application an additional two years, said that increases in boat traffic and fuel spillage still pose a significant threat to the ecology of the area.