The Surf Lodge made waves at East Hampton Town Justice Court on Monday when Justice Catherine A. Cahill blasted the attorney representing its owners for requesting on Jan. 4 that she recuse herself from the case, claiming she was biased against them.
She declined to do so, and read from a lengthy written decision detailing her reasons and the history of the case against Jamie Mulholland, Robert McKinley, and Edgemere Montauk L.L.C., the Surf Lodge owners, who were charged with 686 violations of town code and 1 fire code violation between May 28 and Sept. 16 of last year.
In her decision, she also reprimanded them and their attorney, Colin Patrick Astarita, for repeatedly failing to appear in court, even after criminal summonses had been issued.
According to Justice Cahill’s statement, the charges against the Surf Lodge began with a fire code violation on May 28 and continued throughout the summer. They included charges of having no building permit, no certificate of occupancy, no site plan approval, illegal clearing of wetlands, property maintenance violations, and overcrowding. Between 1 and 13 violations were filed daily until the Surf Lodge closed for the season.
The defendants had a June 27 court date to answer the first fire code violation, but neither they nor their attorney showed. As the violation pertained to public health and safety, a criminal summons was issued for July 5 and personally served, Justice Cahill wrote. Mr. Astarita and his clients did not appear, and a second criminal summons was issued for July 11, also personally served. Yet again, no one for the Surf Lodge came to court. Warrants were then issued for the defendants “in order to secure their appearance before the court and hasten the resolution of any potential health or safety violations (overcrowding),” Justice Cahill said.
Mr. Astarita and his clients responded to the warrants in person and were arraigned on the charges. According to Justice Cahill, when asked to explain why the court dates had been missed, Mr. Astarita “made this court aware of a ‘very fruitful’ meeting that had taken place with several members of town government. He claimed that ‘all parties’ (meaning town attorney, police department, fire marshal, and building inspector) were satisfied with the actions being undertaken by the defendants to assuage the town’s concerns,” Justice Cahill said.
“Based on that meeting, defense counsel believed his presence in court was somehow not required, despite the numerous charges on the court docket, as well as the two personally served summonses,” she said in her written decision, adding that if the meeting was to “resolve or adjudicate” the court charges pending, then the court should have been included, which it was not.
More charges continued throughout the summer. Mr. Astarita and his clients did not appear for a court date on Aug. 1, when an attorney filling in for him requested an adjournment. On Aug. 8, Mr. Astarita was in court and entered a not guilty plea to 40 new charges, and on Aug. 15 another attorney asked for an adjournment on Mr. Astarita’s behalf.
On Aug. 22, Mr. Astarita appeared and “was arraigned on 182 new charges, (13 charges, on each of 14 separate days [. . .]) A discussion was held on the record, wherein the assistant town attorney told the court when asked, that the town’s goal was compliance by the defendant,” Justice Cahill said.
A court date of Aug. 29 was set, but Mr. Astarita and his clients again failed to appear. The case was adjourned to Sept. 6, when the Surf Lodge was arraigned on 65 charges. According to Mr. Astarita at the time, the Surf Lodge was closed for the season. The case was adjourned to Oct. 3, when 108 additional counts covering Aug. 13, 14, and 20, and Sept. 6, 8, 9, 15, and 16 were filed with the court. The defendants were arraigned, and the date was adjourned to Oct. 17.
On Oct. 17, a settlement was discussed and the case was adjourned for Mr. Astarita to make motions. He requested two more adjournments to “obtain the minutes of the court proceedings,” said Justice Cahill, and then filed the motion asking Ms. Cahill to recuse herself.
Justice Cahill cited statutes and case law to support her decision to “preside over these trials and deny defendant’s application for recusal in all respects.”
“It is untenable to require judges to recuse themselves whenever even an unsupported allegation of bias is made,” she wrote, citing a case against the City of New York.
In a separate case, a court noted that a “judge must carefully weigh the policy of promoting public confidence in the judiciary against the possibility that those questioning his impartiality might be seeking to avoid the adverse consequences of his expected adverse decision.”
At one point while Justice Cahill was reading her decision, she stopped to reprimand Mr. Astarita for using his cellphone while she was speaking.
“Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,” Justice Cahill said, pointing again to the decision in the case against the City of New York, which noted that “expressions of impatience, dissatisfaction, or annoyance or critical disapproving remarks about counsel, a party, or the case, will not support a charge of bias unless they derive from an extra-judicial source or display such a high degree of favoritism or antagonism as to make fair judgment impossible.”
In fact, in another case, a court found that “a recusal made where the standard has not been met would provide parties with the opportunity to manipulate the judicial process through ‘judge shopping,’” Ms. Cahill wrote.
Mr. Astarita failed to offer proof “or even an allegation that the court has come to an opinion on the merits on some basis other than this court’s participation in this case,” Ms. Cahill concluded.
Mr. Astarita did not return calls prior to press time. The court date has been adjourned to Feb. 13.
On Sept. 21, in the midst of the Surf Lodge’s dealings with the court, Edgemere Montauk L.L.C. submitted site plans to the East Hampton Town Planning Board seeking to legalize a 5-by-8-foot hot dog cart in a parking area, and a 7-by-12-foot seasonal, covered wait service area on a deck. The Surf Lodge is in a residential zone, but has two legal commercial uses that pre-exist zoning — a restaurant and a motel.
The planning board asked the town’s senior building inspector, Tom Preiato to make a determination on the project, and in a Dec. 6 memo Mr. Preiato said that both the food cart and the covered wait service area “represent an expansion of a nonconforming use, as they did not exist previously on this residential lot.” He said that a natural resources special permit and a variance would be required for both structures “due to their proximity to Fort Pond.”
The property also includes a shed and “paver” stones that are within wetlands jurisdiction and were not approved. There is a clothing shop in a former office, Mr. Preiato wrote, and reminded the board that he had determined earlier that only items featuring the Surf Lodge’s logo could be sold there. Finally, he said a parking variance would be needed if the hot dog cart were to remain where it is, as “it currently is taking up a parking space on a property that is already under the required parking space.”
The Planning Department concluded that the project requires a natural resources permit, a use variance, and four variances for setbacks from freshwater wetlands, as well as the parking variance.
In a unanimous vote on Jan. 25, the planning board referred the Surf Lodge to the town zoning board of appeals to seek the variances and permits.
The applicants were given the option to remove the structures from the site, possibly relocate the food cart and the shed, or request the required variances. The planning board cannot consider the application until the project has received the variances.
“We disagree with the determination of the building inspector with regards to the wait-service area, and whether that’s an expansion of pre-existing and non-conforming use,” Eric Bregman of Gilmartin and Bregman, an attorney for the Surf Lodge, told the board on Jan. 24. “It’s a commercial operation. We are going to appeal that and ask for a variance.”
“The Surf Lodge can seat 68 people to eat, and the chef was quoted in The New York Times claiming they serve over 600 meals a night,” Bob Stern, president of the Concerned Citizens of Montauk, told the planning board. “It’s almost like a college prank to cram even more people in there,” he said. “The question of cramming a hot dog cart in this place is kind of humorous. . . . It’s an environmentally sensitive area, and we’d like you to consider the context of these decisions.”
Richard Kahn, chairman of C.C.O.M.’s legal committee, said he believed the certificate of occupancy for the Surf Lodge was issued in error, and since then it has “become the bane of Montauk’s existence.” Mr. Kahn recommended a one-week limit be imposed for the establishment to file for the variances. “At least, let’s put some controls on them. They are completely beyond any kind of rational approach at this stage.”
“I can’t say that I’m glad that Mr. Bregman has chosen to appeal the ruling of the building inspector because I think it’s exactly right,” said Jeremy Samuelson, an environmental advocate with Group for the East End who works closely with C.C.O.M. “This is a pre-existing, nonconforming use. Any rational human being that drives by there on a Friday night and looks at what’s going on has to realize that what’s happening there is not scale to the property.” He pointed out that an additional structure “constitutes expansion.”
Mr. Samuelson said he represents “two organizations including 3,500 people, with over 1,000 of them who have a direct connection to Montauk. . . . They’re upset and frustrated with what’s transpired over years with this property.”
“I hope that this board bears in mind the dozens upon dozens of nearby residents who live on that pond, who have lived year after year, watching the intensification of use, and the continued failure to come before this board and other regulatory agencies and seek approval and permissions while thumbing their noses at the town and this county,” he said.
“This is a controversial place. I live in Montauk, and it troubles me,” said Nancy Keeshan, board member. “It behooves the applicants to heed the building inspector and go through the proper channels. And there needs to be some of kind of time limit.”
The rest of the board members, Bob Schaeffer, the vice chairwoman, Diana Weir, Patrick Shutte, J.P. Foster, and Ian Calder-Piedmonte agreed.
“I think of myself as very pro-business,” said Reed Jones, the chairman. “It’s very easy to say it’s just a hot dog cart, everyone likes a hot dog. This place in the summer is crazy. I agree with the building inspector that it is an expansion; you have a lot of issues to sort through before us.”