A four-year battle that began in the spring of 2008 with the construction of a gate at 17 Beverly Road in Springs may finally be drawing to a close, as the East Hampton Town Zoning Board of Appeals began preliminary deliberations on the drawn-out affair on Sept. 11.
The saga began when Lee David Auerbach, the owner of the Beverly Road property, decided to erect two stone columns and a six-foot metal gate at the end of the private road leading to his house. Because of the height of the gate, he needed and obtained approval from the town’s architectural review board May 15, 2008.
The town’s chief building inspector at the time, the late Don Sharkey, issued a building permit for the gate and in July 2008 issued a new certificate of occupancy for the property.
Mr. Auerbach and Eric Pearl, a neighbor who opposes the gate, agree on these points, but not much else.
According to Jeffrey Bragman, Mr. Pearl’s attorney, the A.R.B. approval was improperly obtained because Mr. Auerbach had not contacted Mr. Pearl about the meeting, despite the fact that Mr. Pearl was in negotiation with Mr. Auerbach about the gate. Mr. Auerbach had told his client that A.R.B. approval was not required, Mr. Bragman claimed, then went before that board. “He snuck into the A.R.B. with a fence that would need approval,” Mr. Bragman told the board on Aug. 14, during the continuation of a November 2011 hearing.
“This case began in deception, and the deception continues today,” Mr. Bragman said.
“Mr. Bragman’s conduct is discourteous and unacceptable,” Mr. Auerbach’s attorney, Theodore Sklar of Esseks, Hefter, and Angel, wrote to the zoning board on Sept. 11.
Robert Connelly, the attorney for both the Z.B.A. and the A.R.B., would not comment on the case directly, but did say that the architectural review board, unlike the other town boards, does not notify potentially affected neighbors when an applicant comes before it.
In fact, Mr. Connolly added, it is only recently that the A.R.B. even began to post its agenda as a public notice in The East Hampton Star.
After learning of the A.R.B.’S approval of the gate in May 2008, Mr. Bragman contacted the board, telling it that there was opposition to the project that had not been heard.
The A.R.B. held another hearing in June 2008, at which the neighbors were invited to weigh in. Mr. Bragman argued before A.R.B. at the time that the gate required approval by the planning board because it would be on a private road, and would be covered by a town law governing turnarounds on private roads.
“The planning board was asked, ‘Do you have any comments?’ ” Mr. Sklar said at the Aug. 14 Z.B.A. meeting. “There was no response.”
In Mr. Bragman’s eyes, that second 2008 A.R.B. meeting, as well as a phone conversation he had at the time with the board’s attorney at the time, Maddie Narvalis, is proof that the A.R.B. had reversed its approval of the gate.
However, according to Mr. Connolly, once an application is voted upon, approved, and signed by any of the town boards, including the A.R.B., the decision can only be reversed and reopened by a unanimous vote of the board. Such a vote does not appear to have occurred in this case.
“The whole A.R.B. thing,” Mr. Sklar said. “What a canard. There is no resolution rescinding anything.”
“They were reopening the hearing,” Mr. Bragman said of the June 2008 meeting. He contends that the board simply dropped the ball, bringing the opposition in, and then failing to follow up on what it had heard.
One of the reasons Mr. Pearl gave in 2008 for opposing the gate was that it prevented access to the turnaround at the end of the private road. According to Mr. Sklar, in July 2008, Mr. Auerbach agreed to make the gate inoperable, locked in an open position, so that access to the turnaround could never be denied. Mr. Sharkey issued the building permit shortly after that and issued a certificate of occupancy in February 2009.
Since then, Mr. Pearl has continued to oppose the gate. Mr. Bragman cited a 2008 memo opposing the construction from Tom Talmage, the town engineer, stating that the gate is on a road which could eventually become a public road, and that it eliminates the possibility of a shoulder, creating a safety hazard.
In 2011, Tom Preiato, the town’s new head building inspector, took up the case, making an appeal to the zoning board to reverse Mr. Sharkey’s certificate of occupancy. In the appeal, Mr. Preiato wrote that he “believed” the certificate should be revoked.
Mr. Sklar argued that Mr. Preiato could either revoke the permit or not, but it was not in the board’s purview to act on a statement of belief from Mr. Preiato, and that Mr. Preiato had not presented any findings to support revocation.
Mr. Preiato’s failure to actually revoke the certificate was merely a “ministerial” error, Mr. Bragman told the Z.B.A., and could be corrected by the board stepping in and revoking it itself.
The Z.B.A. began to discuss the case during its Sept. 11 meeting without getting into specifics, but it did talk briefly about Mr. Preiato’s failure to revoke the certificate of occupancy.
“Keep that process in mind,” the board’s chairman, Alex Walter, told fellow board members. “What it should be as opposed to the way it was.”
The board, which has a very busy schedule of hearings in the next few weeks, could reach a decision on the matter at its next work session on Oct. 9.