With the stroke of a pen on June 9, the Town of East Hampton endorsed the right of a Montauk mechanic to ply his trade on the otherwise gentrified shores of Fort Pond Bay.
Tom Ferreira, who has run an auto repair business at 63 Navy Road for decades, has agreed to erect an eight-foot fence to shield the operation. The memorandum of understanding, entered into earlier this month by Mr. Ferreira and John Jilnicki, the town attorney, represents a dramatic change in the mechanic’s relationship with the town, a change prompted, his attorney claims, by an oversight that town officials now understand. However, the outcome of an Article 78 legal proceeding that Mr. Ferreira brought against the town as well as the future of a short-wave radio antenna on his property remain up in the air.
In the suit, filed in State Supreme Court in Riverhead on Feb. 3, Mr. Ferreira contends that in 2009, after years of being harassed and receiving town summonses, officials, civic organizations, and neighbors launched a campaign to force him out of business and eventually out of his family home. Mr. Ferreira’s suit states that the town confiscated over a dozen cars and other belongings, added the cost of the work to his tax bill, and placed a lien on his property when he couldn’t pay his taxes. The case is scheduled to come up in court today.
The property is in an area whose zoning was upgraded from commercial industrial to residential in 1983. Mr. Ferreira held state and town licenses to operate the business, Automotive Solutions, but neighbors complained its cars and car parts were an eyesore. Because the rezoning could have put him out of business, Mr. Ferreira sued the town and won. Then, in September of 2003, the town building inspector clarified the issue by ruling the business was a pre-existing, nonconforming use and thereby legal.
Nevertheless, complaints continued and pressure mounted. In early 2009, Mr. Ferreira settled numerous citations in Town Justice Court related to the condition of his yard. On June 18 that year, the town board unanimously authorized the forced removal of what it cited as “litter,” on the grounds that it was dangerous to the public’s health, safety, and welfare. The board said it was acting on complaints from neighbors and from the East Hampton Town Litter Committee, a civic organization. Board members also said they were acting on the advice of Dominic Shirrippa, then the town director of code enforcement.
On at least two occasions, Mr. Schirrippa and Kenneth Glogg, a code enforcement inspector, had declared that the property’s abandoned cars, tires, propane tanks, “and other combustible materials when ignited . . . would lead to possible catastrophic consequences.”
However, James Dunlop, the town fire marshal, inspected the property on May 15, 2009, and found “no violations of state and local code were noted at the time.” In a report dated June 17, 2009, the day before the town authorized the first of two property seizures, he wrote, “We would like to congratulate you on this attention to fire safety in your place of business.”
Mr. Ferreira has said that as a mechanic with 30 years’ experience, he always “mummified” the vehicles on his property, meaning he drained them of gas, fluid, and oil.
On June 22, Trinity Transportation, an outside contractor, hauled away 12 vehicles, charging the town $9,850. Neighbors complained that Mr. Ferreira had eight more cars delivered to his property the next day, although he denied it. The town then hired Trinity once more. It removed cars and other property on Sept. 14, 2009, also at a cost of $9,850.
The subsequent tax lien on Mr. Ferreira’s property of $19,700 remains in place to this day. In addition, Mr. Ferreira claims the cars and other property seized, sold, and/or destroyed by the town were worth $143,302. Six new summonses related to the condition of his grounds were levied in October 2010, and in connection with the presence of a radio antenna. They are pending.
Mr. Ferreira’s Supreme Court brief argues that the town violated his right to due process under the federal and state Constitutions. The suit claims he was not notified that the town board intended to consider seizing his property and, thus, that he was not given an opportunity to rebut the charge that his business posed a danger to public health and safety. Nor, he claims, was he given a chance to fight the charges in Town Justice Court, after requesting a trial.
Robert Connelly, the attorney representing the town in court today, said yesterday that case law supported municipalities’ “abating a nuisance” by simply notifying, by letter, the person charged. This was done, Mr. Connelly said, adding that in the case of a gas or fuel hazard, no notice was necessary.
Town Councilman Pete Hammerle, one of the board members who voted to clear Mr. Ferreira’s yard, said last year that the board had been besieged by complaints. “His own family was calling us. His aunt could not sell her [neighboring] house.” Mr. Hammerle said Mr. Ferreira had been “delaying, delaying. Our only option was to get him to pay for it down the line. Put it on his tax bill. Not that he won’t be able to pay so we can get him out.”
Former Councilwoman Pat Mansir, while also voting to seize Mr. Ferreira’s property, balked when it came to asking him to pay for it. “We had spent money to clean up Rian White,” she said, referring to the forced removal of debris from Mr. White’s Maidstone Park property in 2009.
“When it comes right down to it, the town attorneys didn’t seem that comfortable,” Ms. Mansir said, about having town employees remove private property. “So we . . . hired from the outside. Same with Ferreira. It was a bad decision.”
Mr. Ferreira pointed to differences between his business, which was operating on property zoned for it, and Mr. White’s situation. “And, he got a trial, and I didn’t.” Mr. Ferreira said.
Although another attorney initiated Mr. Ferreira’s lawsuit, he is now represented by Thomas Horn, a former East Hampton Town fire marshal and safety officer. Mr. Horn believes his client was the victim of an unchecked crusade by the town, the Montauk Citizens Advisory Committee, real estate interests, and neighbors, including Mr. Ferreira’s aunt.
Mr. Horn said he agreed that his client’s right to due process had been violated and offered an opinion about why the town agreed to a memorandum of understanding with the embattled mechanic even before the court acts on the case.
“The M.O.U. serves both sides in that it defines what my client can do on his property, and perhaps more. The town finds it advantageous to take the M.O.U. since they were not empowered to enforce state codes at the time or to enforce the local code either,” Mr. Horn said.
He went on to explain that in his opinion the town had slipped up by changing the title of “officer” of the code enforcement department to “inspector” in its union contract, but by failing to make the change in the town code. Officially, there were no code enforcement officers at the time Mr. Ferreira’s property was seized, and therefore, he said, the town’s actions were illegal.
He also said the seizures were improper because the town neglected to solicit bids for the work. Of the subsequent tax lien, Mr. Horn found a series of faults in the process by which it had been imposed.
Pat Gunn, an assistant town attorney, said he disagreed completely with what Mr. Horn was suggesting. He would not comment further because the town is involved in ongoing litigation with Mr. Ferreira.
“I find it interesting, however, that Mr. Horn has offered an opinion since he does not represent Mr. Ferreira on the 2009 case. It is my understanding that Austin Manghan Esq. is the attorney for Mr. Ferreira on this matter.”