Take Fire At Fort Pond House Listing

‘Save it for your lawsuit,’ Quigley tells Whalen

(June 17, 2010) A coalition of community groups has questioned whether East Hampton Town can legally put Fort Pond House, a property it owns in Montauk, on the market.

Despite opposition from its Demo­cratic minority, the town board agreed on June 3 to list the property for sale. The resolution was approved in a 3-2 vote by the Republican majority, which insists that selling land must be part of a financial bailout plan in the face of a huge town deficit.

The almost four-acre waterfront property on Fort Pond, which contains a former residence used by community groups, was purchased by the town in 2003 for $890,000. It was the first property to go on the block from a list of 22 possibilities that had been prepared for Supervisor Bill Wilkinson.

The town’s two commercial docks in Montauk were removed from the list after an outcry from fishermen and a determination that the sale would be illegal.

Representing the Group for the East End, the Concerned Citizens of Montauk, and community groups including the Third House Nature Center, the Hamptons Shakespeare Festival, the Accabonac Protection Committee, and the Northwest Alliance, Richard Whalen, a lawyer who is a former town attorney, presented a letter to the town board on Tuesday.

Members of those groups, and others concerned about the property sale, have been asked to turn out in force to make their views known at a town board meeting at Town Hall beginning at 7 tonight.

Mr. Whalen says in his letter that the move to sell the property violates several state and local laws, including the state’s Public Trust Doctrine, which requires state legislative approval for the “alienation of parkland,” and the State Environmental Quality Review Act, which requires an assessment of any action that could significantly hurt the environment.

“As the largest town-owned park and recreational area on the town’s largest freshwater body, the Fort Pond House property is an irreplaceable public resource,” Mr. Whalen says in the letter.

The town’s intended use of the property, as stated in a resolution authorizing its purchase, as well as its actual use by the public since then, both define it as parkland, Mr. Whalen argues. The letter says that courts have upheld the prin

ciple that parkland may not be sold or diverted to other uses without the express permission of the State Legislature.

Mr. Whalen also asserts in the letter that any actions proposed in coastal areas — a designation that includes all of Montauk — must be reviewed to ensure that they are consistent with the mandates of the town’s Local Waterfront Revitalization Program. The mandates include retaining and promoting public access to water-related recreational resources as well as public access to the water’s edge.

The sale of the town docks was found to be in violation of the revitalization program.

Mr. Whalen also says that the board violated the state’s open meetings law when it adopted the resolution to offer Fort Pond House for sale without first discussing it in a public session.

The sale resolution was added to the agenda for the June 3 board meeting at the last minute by Town Councilwoman Theresa Quigley without the knowledge of the minority dissenting board members. Actions that are taken in violation of the open meetings law, Mr. Whalen wrote in his letter, are void.

Mr. Whalen reviewed the letter for the board at its work session on Tuesday. His comments immediately drew responses from Mr. Wilkinson and Ms. Quigley.

“Save it for your lawsuit,” she told Mr. Whalen. “You represent special-interest groups. I’m here to listen to everybody in this town, and there are voices that have been heard for the last 30 years, and driven all the property purchases. They’re not going to drive the sales,” she said.

“If you want to hear from the people, have a public hearing,” Mr. Whalen said.

“This is a public hearing,” said Ms. Quigley, referring to the board’s policy of allowing members of the public to comment at its work sessions.

Public hearings are scheduled specifically to solicit comments on particular issues. One has not been scheduled on the property sale, and Mr. Wilkinson has said that hearings will not be held on proposed land sales.

“These are promises that were made during the campaign,” Ms. Quigley continued. “You guys lost — the Concerned Citizens of Montauk, the Group for the East End, the conservationists.”

“We are looking to solve a problem that is so monumental,” she said, referring to the town deficit, which is expected to top out in the vicinity of $30 million.

“We do not have the money to support the services to keep our town going unless we get some money,” she continued later. “This is the least offensive way.”

“The other thing we can do is strip the town of its employees. Then we’ll turn into Cairo,” said the councilwoman, who this year visited that city, which she characterized as a “filthy, dirty town.”

“I don’t think that we’re going to be like Cairo if we take a bigger perspective on how to fix the town’s budget problems,” Mr. Whalen said. “We’re asking that the town board sit down, engage with the public about what properties are appropriate to be sold. We’re not saying that there’s nothing that can be sold.”

However, he asserted, “you could find no saleable properties in town, and would find a way to deal with the deficit.” The largest part of the solution, Mr. Whalen said, will be the ability to issue a total of up to $30 million in deficit financing bonds.

State legislation allowing the town to do so, already approved by the Legislature, was signed by the governor late Tuesday.

“There is a special-interest group on every one of the properties,” said Ms. Quigley, referring to the list of potential sales. “Then it becomes who has the loudest voice.”

“That is the American system of representative Democracy,” Mr. Whalen replied. “Once you are elected, you have to listen to the public. The public tends to speak by organizing in groups.”

Also at Tuesday’s meeting, Trace Duryea, the chairwoman of the East Hampton Town Republican Committee, read a prepared statement in support of the “proposed real estate bailout plan of the Wilkinson team.” Ms. Duryea said that the town had purchased a number of properties as “bankable commodities.”

In his comments, Mr. Whalen took issue with that. “You are not allowed under state law to purchase property with the intention of keeping it for future sale,” he said, prompting both Supervisor Wilkinson and Councilwoman Quigley to interrupt.

“That’s your opinion,” both said.

State town law authorizes towns to acquire real estate for “any public purpose,” and, Mr. Whalen said in an e-mail on Tuesday, “acquiring land even though you don’t need it for any public use — that is, land-banking it for future speculative sale — does not appear to be a public purpose.”

When the Fort Pond House property was first offered for sale, Town Councilman Pete Hammerle, who was in office at the time, recalled Tuesday, the board considered using the community preservation fund to buy it. That would have restricted its use and precluded a future sale.

However, Mr. Hammerle said, the board chose not to do so because the town was considering using the property temporarily for a day care program while the Montauk Playhouse Community Center was being renovated.

Len Bernard, the present town budget officer, who held the same post in 2003 under former Supervisor Jay Schneiderman, said last week that the purchase was always considered to be “non-environmental.”