Southampton Village Board member Joe McLoughlin appealed a decision made by the village building inspector earlier this year — a decision that some members of the Zoning Board of Appeals say was incorrect — but withdrew his application last Thursday, June 3.
Had Mr. McLoughlin not withdrawn the appeal, the attorney for the concerned property owner was poised to go to court to get a temporary restraining order to prevent three ZBA members from hearing the application. That attorney, David Gilmartin, had written to those ZBA members demanding their recusal. He wrote that they appeared to have engaged in a conspiracy to force Mr. McLoughlin to file the appeal and that they had lost any semblance of impartiality.
“There is a zoning board that’s out there looking for case so that they can shape the decisions that are being made in the building department, and that’s scary,” Mr. Gilmartin said in an interview on Monday. “They are supposed to be an impartial board, deciding on applications that are brought to them. Their jurisdiction is appellate only … and now they are actively looking to have applications brought before them in which they have predetermined outcomes so that they can shape the law, which is really outside of their jurisdiction.”
The building inspector’s decision and the now-withdrawn appeal concern 365 and 385 South Main Street, two adjoining 2-acre properties, each with a single-family home on it, in a 3-acre zoning district. The properties had a common owner, The Felix and Elizabeth Rohatyn Trust, which last year sought a determination from the ZBA that the lots were single and separate. The ZBA had taken the position that the two lots — because they were in common ownership and individually undersized for the district — had merged under village code. However, before the ZBA could vote on the matter, which had been before the board for around six months, the attorneys for the trust obtained two separate certificates of occupancy from Senior Building Inspector Chris Talbot in January, and withdrew the application.
ZBA Chairman Mark Greenwald and members Julia McCormack and Susan Stevenson voted at the board’s January 28 meeting to have the board’s attorney at the time, David Kirst, send a letter to Mr. Talbot expressing their view and Mr. Kirst’s interpretation of the law that “the properties had, and continue to be, merged and that variance relief would be necessary to allow for the lots to be unmerged.”
The two other members of the board, Kevin Guidera and Dan Guzewicz, voted against sending that letter.
“I am firmly against this letter being sent,” Mr. Guidera said during that January 28 virtual meeting. “Last meeting we had, we were told by our attorney that the judgment of the building inspector is final. Let it be.”
Mr. Greenwald asked Mr. Kirst to weigh in.
“It’s final until somebody appeals it,” Mr. Kirst clarified. “Then you have the appellate jurisdiction to rule on it. But you do not have first-instance ability to make a decision on the building code. That is his decision, and then it would have to be appealed to you to render a binding decision.”
Mr. Greenwald stressed Mr. Kirst’s point that the decision is not final if someone appeals it.
“I’m well aware of that distinction,” Mr. Guidera said. “We’ve had appeals to us before of the building inspector’s decision. This is not new ground.”
“Right, but if it’s appealed to us, we have the final decision,” Mr. Greenwald said.
Mr. Guidera said he believes the building inspector made the right decision and the fact that the matter had been before the board for five months previously is immaterial. “We have to be here anyway,” he said. “That’s our job.”
Ms. McCormack expressed that she wished Mr. Talbot was in attendance to discuss the matter.
“This application has been withdrawn,” Mr. Kirst noted. “… This board doesn’t really have the jurisdiction to require him to appear and give an opinion on a matter that is not pending before the board anymore.”
Ms. Stevenson voiced support for sending the letter. “I feel that we don’t really have all the information, and the way that this has been timed and handled is unfortunate to say the least for those of us who sit on the board in good faith,” she said.
The board ultimately voted, 3-2, to send the letter, with Mr. Guidera and Mr. Guzewicz dissenting
“Please make sure you don’t put my name on that letter,” Mr. Guidera said.
“I’m not in agreement with sending that particular letter,” Mr. Guzewicz said.
Reached on Friday, Mr. Talbot declined to discuss the matter in depth, although he did say he stands by what he did and it was the right thing to do.
“There’s some other stuff that’s going on with it, and I’d rather not explain why I did what I did,” he said. “At this time, I think that will come out in the future, and it’ll be very clear to everyone what took place here.”
He added: “My [certificates of occupancy] will stand, as they should have, and there will be no appeal of it. They have a 60-day window to appeal any determination like that. That 60-day window has come and gone now.”
Mr. McLoughlin said the reasoning behind his appeal was that the property was held in common ownership and the 3-acre zoning of 1983 superseded the property’s subdivision of 1957. However, he came to the conclusion that the appeal should be withdrawn in the past two weeks or so, he said, although he added, “I understand where some of the ZBA members are coming from and their frustrations.”
Among the concerns that led him to withdrawing the appeal was the possibility of litigation. “I was made aware that there could be pending litigation regarding this appeal, and one of my jobs as trustee, I feel, is to protect the village from any possible litigation,” he said.
When asked who it was who had asked him to file an appeal, he said on Friday that he was contacted by Mr. Greenwald.
“There also was a discussion amongst the mayor and Trustee [Gina] Arresta,” Mr. McLoughlin added. “I don’t know why they didn’t take up the gauntlet to make the appeal, but I was kind of the last man standing.”
He was also contacted on January 24 by Dane Neller, an adviser to Mr. Warren who serves on the village’s budget and finance committee.
“This is deeper and runs to how Talbot is managing his department, and how decisions are being made by him that conflict with zoning law,” Mr. Neller wrote in a text message to Mr. McLoughlin. “This is both a legal issue and a management issue. Village is being set up for lawsuits and conflicts if this is not handled properly.”
Mr. Neller could not be reached for comment.
In a text message to The Press Tuesday, Mayor Jesse Warren wrote: “As the Trustee Liaison to the Building Department, Joe was the appropriate board member to make the appeal. We had a brief conversation on the matter after it came to our attention, and I fully supported his decision to do so. In fact, the Village Board voted to waive the fee for his appeal in a public meeting.”
Ms. Arresta wrote in an email statement that she spoke with the ZBA and “this appears to be a very cut and dry issue, to use their words.”
“I am not sure why Trustee McLoughlin chose to withdraw the appeal, but have reached out to him to learn more,” she continued. “Frivolous lawsuits obviously should not affect zoning board decisions.”
On whether he asked Mr. McLoughlin to appeal, Mr. Greenwald said, “I don’t do anything on my own.” On whether the ZBA asked for the appeal, he said, “That’s all public record.” Asked again, he said, “I’m not sure if it was us who requested it, but any village official could then file an appeal.”
He said both the ZBA’s legal counsel at the time, Mr. Kirst, and the board’s current counsel, Jeffrey Blinkoff, have advised the board that the building inspector’s decision was incorrect and that the lots had merged pursuant to the village code.
“If you have a decision by the building inspector that’s incorrect, shouldn’t somebody appeal it?” Mr. Greenwald questioned. “In this case, Trustee McLoughlin appealed it. What I don’t understand is why he withdrew his appeal.”
Mr. McLoughlin said then-Village Attorney Brian Egan was involved at the very beginning when the matter arose in late January and early February but resigned his post within a week or so. It was new Village Attorney Ken Gray who did most of the filing on his behalf, Mr. McLoughlin explained, referring legal questions to Mr. Gray. Mr. Gray could not be reached this week.
Mr. Gray argued the appeal on behalf of Mr. McLoughlin at the ZBA’s May 18 work session.
“Mr. Gray, we were really at the end of our deliberations … and I think moving toward a decision when, abruptly, this was removed from our purview, which confused many of us,” Ms. Stevenson said at that meeting. “It seemed to be a very odd way of doing things, something I never experienced on the boards I’ve sat on.”
Mr. Gray said it is appropriate and legal for a trustee to appeal, as Mr. McLoughlin had done, and he agrees that the board was coming to the end of its process. “Because this board has so much history and knowledge of this particular application, there’s not much of a presentation that needs to be done. I think it boils down to a matter of law. … I don’t need to reinvent the wheel.”
Ms. Stevenson added, “We worked so hard on it, and then it was removed. It was, to me, quite a shock.”
The matter was slated to be heard at the ZBA’s May 27 meeting, but was adjourned.
Mr. McLoughlin said on Friday that after further review of what transpired, speaking with the building inspector and having more details on the application, he decided to withdraw his appeal.
“This boils down to a lack of communication by all parties,” he said. “Optically, you know, things could have been done better.”
He also noted that having two single-family dwellings on one property would not conform with the village code. Mr. Gilmartin, separately, made the same point.
To that argument, Mr. Greenwald said, “That’s not a correct interpretation of the Southampton Village zoning code. He added that, back in 2009, the two nonconforming lots were transferred into common ownership on the same deed. “It’s a pretty straightforward merger of lots,” he said.
The trust sold 365 and 385 South Main Street in April. Mr. Gilmartin is the attorney for the buyer, identified only by the limited liability company names Seersucker I and Seersucker II in Mr. Gilmartin’s letter to Mr. Greenwald, Ms. McCormack and Ms. Stevenson demanding their recusal.
Mr. Gilmartin attached to his letter screenshots of text conversations that Ms. Stevenson had separately with Ms. McCormack and Mr. Greenwald. He obtained those messages, and messages that Mr. McLoughlin sent and received regarding the matter, via a records request under the Freedom of Information Law.
“The response to my FOIL would seem to indicate that the board members were pushing Trustee McLoughlin to bring this application to give them another bite at the apple — and property owners and applicants before municipal boards are entitled to impartial boards,” Mr. Gilmartin said Monday. “… This board cannot be impartial because they took a position on the issue, and the three of them would need to recuse themselves.”
He said that if they disagree with the building inspector, their recourse is to ask the Village Board of Trustees to pass legislation and not “to push an applicant to bring an application.”
Mr. Gilmartin’s FOIL request produced April 6 texts between Mr. McLoughlin and Ms. Stevenson.
“Good morning. I am wondering if you filed the appeal for 365 and 385 s Main Street / Rohatun / Seersucker 1 and Seersucker 2 Llc,” Ms. Stevenson wrote.
Mr. McLoughlin replied that the paperwork was filed on Friday, and she thanked him.
“My apologies that the process has taken this long,” Mr. McLoughlin wrote.
“I am just happy we have an appeal,” Ms. Stevenson replied.
Mr. Greenwald on Monday questioned why anyone would not want the ZBA to hear the case. “This is about protecting the interests of the village as a whole,” he said. “That’s what the zoning board does.”
Mr. Gilmartin said that because Mr. McLoughlin withdrew his appeal, and because it’s beyond the 60-day requirement, there is no one else to appeal.
“From our point of view, this issue is dead,” he said.
