Taking Hard Line on Cyril’s

Hot spot faces zoning charges in Supreme Court
Work in January at Cyril’s Fish House on Napeague resulted in a stop-work order issued by the East Hampton Town chief building inspector and two summonses for removing fuel tanks without a building permit. T.E. McMorrow

       The East Hampton Town Board voted unanimously last Thursday to authorize new legal action against Cyril’s Fish House, a popular Napeague bar and restaurant that is the subject of a complaint by the town in State Supreme Court.

       The resolution paved the way for the town’s attorney to seek a court injunction to stop ongoing alleged violations of the town’s building and zoning codes.

       Elizabeth Vail, the East Hampton Town attorney, declined to provide details about what is now planned but said in an email that the town board’s vote allows Joseph W. Prokop, the town’s outside counsel in the case, “to seek all appropriate relief to ensure town code violations at the subject property are removed.”

       She said that the move follows a section of state law that “authorizes seeking injunctive relief to stop violations of the town’s building and zoning codes.”

       It is not clear if the town will seek an injunction barring the seasonal opening of Cyril’s for the coming summer. The roadside bar and restaurant is popular with weekend afternoon crowds, which spill into its parking lot at the edge of Montauk Highway.

       The site is owned by several members of the Dioguardi family, including Michael and Bonnie Dioguardi of Hicksville. The business is owned by Cyril Fitzsimons, who closes up shop each winter. Cyril’s generally reopens in early spring. All are named as defendants in the Supreme Court complaint.

       The property owners had been in town justice court after hundreds of summonses were issued over several years for alleged town zoning code violations, including citations for unauthorized expansion, lack of permits for structures on the property, lack of site plan approval, and wetlands clearing.

       The conflict between the town and the property owners, who have expressed a desire to address the issues and work out a solution with town officials to legalize the property, centers largely on the pre-existing, nonconforming status of the business, which is now in a residential zone. What legally existed prior to the residential zoning may remain, but may not be expanded.

       Dianne LeVerrier, an East Hampton attorney for the Dioguardis and Clan-Fitz Inc., the corporation behind Cyril’s, said in an email this week that “all zoning violations were dismissed by the justice court on Nov. 20, 2013,” and no cases are pending.

       However, Mr. Prokop said on Tuesday that, in fact, “there are charges that are pending in the justice court.” He declined to elaborate because of ongoing litigation.

       In the Supreme Court case, he said, the town is alleging the illegal expansion of a pre-existing, nonconforming use.

       Two citations for alleged town code violation were recently issued. In late January, Tom Preiato, the town’s chief building inspector, issued a stop-work order and two summonses for the removal of fuel tanks at the Cyril’s property without building permits.

       In a response to the Supreme Court case filed with the court in November, Ms. LeVerrier denied all of the claims and brought counterclaims against the town for abuse of process and malicious prosecution.

       Many of the structures that are the subject of the town’s complaints either predate today’s zoning laws or are structures for which permits are not required, the defendants claim.

       Beginning in February 2012, Ms. LeVerrier wrote in her counterclaim, the town improperly charged Michael Dioguardi and Clan-Fitz Inc. with multiple alleged violations of the town code that were the subject of a conditional discharge, ultimately issuing 450 duplicative summonses.

       Those summonses were an abuse of the criminal process, Ms. LeVerrier says. Attempts to meet with the town’s attorneys to resolve the alleged violations that were the subject of the conditional discharge were in vain, she says, until last May 2.

       According to the counterclaim, Mr. Prokop was instructed by the town justice court to propose a stipulation of settlement by May 8 indicating what, if any, violations remained.

       Instead, Ms. LeVerrier wrote in the counterclaim, Clan-Fitz Inc. was served with citations for 58 alleged fire code violations and Mr. Dioguardi’s attorney was notified that the town would seek a temporary restraining order to halt the use of the property.

       The attorney claims that Mr. Prokop misrepresented his intentions to the court “simply to ambush defendant in the civil action he was secretly planning to commence.” She called it a “vindictive action, motivated by a mere intent to harass and injure.”

       “The timing and nature of the town’s application for injunctive relief was not motivated by any legitimate concern for public safety,” she said.

       Ms. LeVerrier claims that it was illegal for the town to issue the summonses while the conditional discharge was still in place, and that the town’s motivation “was simply to harass and injure the defendants by summoning their appearance to Justice Court — and subsequently in Supreme Court — based upon fabricated public safety concerns that were so trivial that the town never even bothered to convey them to defendants on the date they were identified — despite the fact that all parties were present.”

       The issuance of hundreds of summonses imposed economic harm, Ms. LeVerrier claims, and “has compromised the defendants’ standing in the community.” Reports in the press, she wrote, “where the defendants were portrayed as renegade business owners who care nothing about the environment or the community,” have negatively impacted the restaurant’s business.

       “The defendants cannot get the town to sit down and make a determination that comports with its own town code,” she wrote.

       The town, Ms. LeVerrrier said in an email this week, has failed to prosecute the Supreme Court case. The defendants obtained a discovery order from the judge last week, and depositions of town officials are scheduled to begin on April 30.

       The summonses issued by the town, she said, also negatively impacted the property owners’ zone change request, which was denied last year by the town board.

       The Dioguardis had asked the town to change the property’s zoning designation from residential to neighborhood business, in the hope that the less-strict regulations would allow them to resolve some of the issues.

       Despite support from two members of the previous town board, the request failed to get a majority after a large turnout at a hearing last March by citizens opposed to the change. The Suffolk County Planning Commission also expressed concerns about the site.