First Round To Stony Hill

A State Supreme Court judge has ruled that the lawsuit over whether East Hampton Town has adversely affected the property on which the Bistrian family is building a golf course in Amagansett must go to trial. The town has appealed.

In a decision released late last month, Justice Robert W. Doyle rejected the town's request to dismiss the $25 million suit filed in 1994 by Peter and Mary Bistrian. The decision had been delayed for two years due to a procedural mishap in the court clerk's office.

William Esseks, the Bistrians' lawyer, was buoyed this week by the decision. He said the town would find itself legally responsible for the contamination from the town landfill and for the subsequent three-year delay in the family's being able to proceed with its plan to develop their Stony Hill Country Club. He warned that damages could be very hefty and hinted that the town eventually might have to pay to bring public water to the property.

The general plan for a golf course was approved by the Town Planning Board in 1978. It runs southeast for more than 140 acres along both sides of Abraham's Path from Springs-Fireplace Road to Town Lane. The 60-acre landfill is on the south side of Abraham's Path between Springs-Fireplace Road and Accabonac Highway.

"The Bistrians are the innocent property owners. The town and the State Department of Environmental Conservation are the polluter and the agency that failed to properly supervise the polluter, and they are seeking to blame us for their own dereliction of duty," he said Tuesday.

Mr. Esseks, a senior partner in Esseks, Hefter, Cudahy & Angel, did not, however, sue the D.E.C. His clients, who have finished much of the grading for the 18-hole golf course, are awaiting permits from the D.E.C. for two irrigation wells. The first set of permits, approved in the 1980s, expired.

Town Confident

Frank Isler, the lawyer for the town, said he would soon meet with the Town Board to plan strategy, but added that he was confident the town would prevail. He said the Bistrians had not been harmed in any way by the landfill, and therefore were not entitled to any compensation. Mr. Isler is a partner in Smith, Finkelstein, Lundberg, Isler & Yakaboski.

In its motion to dismiss the suit, the town argued that the Bistrians failed to show they had been harmed by the landfill, that they were trying to enforce state landfill laws without authority, and that the complaint was moot since all landfilling had ceased.

Engineer's Warning

Justice Doyle ruled, though, that the allegations in the suit were sufficient grounds for a trial. He ruled that the landfill could be seen as a nuisance both to the Bistrians and their golf course and to the public in general.

The suit relies in part on a warning a town engineer gave the Planning Board in 1994 that groundwater flowing from the area of the landfill toward the golf course could carry contamination into the course's irrigation system, subsequently exposing golfers, groundskeepers, and neighbors.

Peter Dermody, a geohydrologist for the town, said this week that monitoring wells showed low-level contamination at the edge of the town dump property. No testing has been done on adjacent properties, and the D.E.C., which is supervising the monitoring and permanent shutdown of the landfill, is not likely to require it, he said.

Neighbors Opposed

In 1994, the owners went back to the Planning Board seeking approval for a clubhouse, parking lot, and two irrigation wells, and the application engendered considerable opposition from wealthy landowners in the Stony Hill area of Amagansett.

They withdrew the application last year, however, on the advice of their attorney, who said further Planning Board approval was not needed. The board's own lawyer agreed with Mr. Esseks that the 1978 approval constituted a go-ahead.

The board had intended to re-examine the environmental consequences of the golf course in response to the outcry.

Since no clubhouse or parking lot was approved in 1978, the Bistrians eventually will have to seek site-plan approval for their construction.

"Different Issue"

That the Stony Hill Country Club has no clubhouse or parking lot is "a different issue altogether," Mr. Esseks said this week.

Should the town lose its appeal, both sides would then begin the lengthy disclosure process, during which the town would be required to hand over test results from its monitoring wells.

Mr. Esseks, however, said his clients would win no matter the outcome.

"If there's pollution, the town has to clean it up and compensate us for the delay. If there's no pollution, then let us have our water," he said.