David Eagan, the attorney for the Concerned Citizens of Wainscott, which has one lawsuit pending over a proposed Wainscott development and another waiting in the wings, blasted the East Hampton Town Attorney’s office this week for working too closely with real estate lawyers who are representing applications before the town.
He referred in particular to a statement made by the developer Michael Davis, whose certificate of occupancy for 411 Montauk Highway in Wainscott Mr. Eagan was challenging before the town zoning board of appeals on March 27.
The town’s senior building inspector, Tom Preiato, had issued a dual-use certificate of occupancy in June of last year allowing the property to be used for both residential and business purposes. The property is in a residential zone, but had commercial uses prior to current zoning regulations. Last month, the town planning board approved a site plan for Wainscott Wombles L.L.C., allowing Mr. Davis to tear down the commercial building there and build a new one in its place as well as a small house and garage. Mr. Eagan is challenging the legality of the certificate of occupancy.
During the hearing on his challenge, Mr. Davis said, “I asked my attorney what could be built on the property, she, in turn, consulted with the town attorney, John Jilnicki, and the planning board attorney, Kathryn Santiago, who also prosecutes code violations for the town. They both agreed that ‘dual usage,’ that both a commercial building and a residence, was permissible under East Hampton Town Code.”
“The town attorneys are not in the business of telling people what they can do. They are there to advise the planning board, not the applicants,” Mr. Eagan said Friday, adding that the close relationship of the town attorneys to the attorneys appearing before the planning and zoning boards was an unhealthy one for the town.
“You can study the law and code,” he said, “or you can pick up the phone and ask the town attorney, ‘Can I get away with this?’ ”
On Monday, Mr. Davis’s attorney, Denise Schoen of Tarbet, Lester, and Schoen, took exception to the suggestion implied in Mr. Eagan’s comments that there was a “good old boy” club mentality involved in the issuance of the certificate.
Ms. Schoen said she had not been involved when the question of dual usage first came up, but that Laurie Wiltshire of Land Planning Services, who is also working for Mr. Davis, had hit upon the matter. “When the question came back to me I wanted to research it myself. I wrote it all out; I sent it back to Laurie,” Ms. Schoen said Monday. “It wasn’t like he said, ‘Can I do this?’ and I called my friends.”
Ms. Schoen’s partner Jonathan Tarbet also bristled at Mr. Eagan’s comments.
“Is David Eagan not a real estate lawyer? I guarantee you David Eagan speaks to the town attorney’s office to get guidance,” Mr. Tarbet said. “As a local attorney, it wouldn’t be wise to talk to Tom Preiato without also talking to the town attorneys.”
In a June 2, 2011, letter to Land Planning Services regarding his determination, Mr. Preiato wrote, “The property is unique as it has received a use variance for a commercial use in 1975. Specifically, the pre-existing, nonconforming use of retail and a professional office had been rendered a permitted use and still is at present.” He said that a house with a detached garage would be allowed on the property.
The 1975 finding notes that “the premises do not lend themselves to the residential use for which they are now zoned,” and goes on to allow the change in use of the premises from a single diner to an enlarged structure that would then house both a retail shop and a real estate office.
Mr. Eagan argues that because the site received a use variance for commercial operation in a residential zone, it is not eligible for a dual usage certificate of occupancy, and that it should revert to its current zoning status — residential only — or continue as a business-only use, as allowed by the variance.
In arguing the case before the zoning board, Ms. Schoen presented an affirmation from another lawyer, Richard Whalen, a former deputy town attorney and a zoning board attorney for many years.
Mr. Whalen argued that the intent of the zoning board in 1975 was to continue the pre-existing, nonconforming status under which, he argued, Mr. Davis was entitled to build both a house and a business on the property, an argument that seems to be borne out in the original Sept. 30, 1975, finding, when the board wrote, “The variances requested are granted for the continuation of the prior nonconforming use.”
Mr. Preiato would not comment on the case.
Mr. Eagan has vowed to continue the fight in court if the zoning board rules against him, and warned that Mr. Davis would be, in effect, rolling the dice if he proceeded to build after such a ruling. Concerned Citizens of Wainscott filed suit against the planning board and Wainscott Wombles L.L.C. last month, seeking to reverse the planning board’s site plan approval.
“Under law, since this suit is still pending he will be building at his own risk,” Mr. Eagan said.
Ms. Santiago would not comment on the case, due to the current litigation.
For his part, Mr. Davis expressed exasperation with the system during his statement to the board.
“A handful of people have now managed to delay the start of construction three or four months, and consequently we cannot be in our new office by this season as planned. Obviously this has caused both logistical and financial hardship. Something is broken with the system if a well-planned development can be bushwhacked at the 11th hour.”