A Motel or Not? Too Late to Ask?

As Ditch Plain neighbors and their attorney made the case on Tuesday for the revocation of a certificate of occupancy for a motel at 11 Ditch Plains Road in Montauk, the East Hampton Town Zoning Board of Appeals heard from the former chief building inspector who had issued a building permit for the property and the property’s owner, Sean MacPherson.

Mr. MacPherson, who has a number of high-end hotels in New York and also owns the Crow’s Nest in Montauk, bought the eight-unit motel on Ditch Plains Road in 2014 for $1.15 million and has been at work since last year renovating it for employee housing.

He said Tuesday that has put about another $1.5 million into it, “all just so I can secure my operation here. I’m trying to supply housing for my business. That’s all I’m trying to do.”

The lot in question is zoned for residential use. For a motel — even one that houses employees through the season — to legally operate there, the business must have been operating as such since before the lot became part of a residential zone. The Ditch Plains Association and several neighbors, represented by Christopher Kelley, charged that the motel use had been abandoned for many years before Daniel Casey, a town building inspector, issued the certificate of occupancy for a motel there in April. A building permit for the property was issued by the town’s former chief building inspector, Tom Preiato.

Mr. Kelley presented affidavits from neighbors as well as electrical usage records from the Long Island Power Authority and a 2005 report from the East Hampton Town fire marshal’s office as evidence that the property had not been operated as a motel for many years. Several neighbors claimed that they had seen no hotel activity at the property.

“The only sign of life were the deer that would graze through it,” said Brian Markowski of Brisbane Road, one of those appealing the issuance of the certificate of occupancy.

“The property has not been used for many years, and everybody knows it,” said Laura Michaels, head of Ditch Plains Association, which, she said, has 500 members.

According to Mr. Kelley, LIPA records indicate that power was turned off to the motel units as early as 2004.

After visiting the property sometime in early 2005, the fire marshal wrote that the “building was unoccupied and the electricity was turned off,” concluding that “without proper electric power, this building may not be occupied in any fashion,” according to Mr. Kelley. On a visit in 2009, Mr. Preiato said that he and a code enforcement officer had found an extension cord running from the house to the motel building. They did not enter the building at the time, Mr. Preiato said.

Mr. Kelley said that when Mr. Preiato issued the building permit to Mr. MacPherson, “he was not looking at it as to whether there was a question of abandonment or whether it was a coninuation of a pre-existing nonconforming use; he looked at the plans to see if they complied with the New York State Building Code and he issued the building permits on that basis.”

Don Cirillo, a board member, asked Mr. Preiato to explain the process he followed when issuing the building permit. At the time, Mr. Preiato said, “I felt it was a viable operating business, with no proof of such, but that was under the premise that I did give the building permit.”

“You thought it was an operating motel?” asked John Whelan, the board’s chairman.

“Yes,” Mr. Preiato said.

“But in 2009 you saw an electrical cord going out from the motel to the house and you hadn’t gone in?” the chairman asked.

“Correct,” Mr. Preiato said.

“What did you base your decision on issuing it, that you were presented with evidence that it was an ongoing enterprise? Or did you check the files?” Mr. Cirillo asked.

“Maybe to the opposite, that I wasn’t aware of anything as proof that it had been abandoned,” Mr. Preiato said.

“So there was no evidence in the file to indicate that it was abandoned? Did you have access to this report from the fire marshal?” Mr. Cirillo asked.

“I imagine I had access to it,” Mr. Preiato said. “I don’t know that I read it.”

“You saw reference in the file that it was previously operated as a motel, but you didn’t verify that it was an ongoing enterprise,” Mr. Cirillo clarified.

Mr. MacPherson, his attorneys, Richard Hammer and Anthony Pasca, and his land-use consultant, Britton Bistrian, insisted that a motel had continuously existed at the site, even if it was not, as Ms. Bistrian said, “a motel that you or I or anyone would have been living at.”

Mr. Hammer presented the board with several documents to consider. Cate Rogers, a board member, asked if there was a receipt or other proof that the motel was indeed running as a business. “There should be some tangible evidence,” Mr. Whelan said.

“The state of the people who were living there, these are people who were down on their luck,” Ms. Bistrian said. “They’re not paying their taxes or paying their rent at the end of the month.”

“Clearly it was occupied and used,” Mr. Hammer said. Regardless of that, Mr. Pasca said, the neighbor’s opposition may prove to be in vain because of a “timeliness issue.” He said they had 60 days from the start of construction to appeal the issuance of the certificate of occupancy, “not just to complain to the building inspector, to complain to you guys,” he said. He wondered how they could be aware that “there was no use,” but not notice that construction had been going on at the property until September. If the board agrees that their appeal is not timely, Mr. Pasca said, “than you actually have no jurisdiction to rule on their appeal.”

“They don’t get to wait until after construction is over,” he told the board. “They sat back and watched Sean invest a million dollars in this property. This is an untimely appeal.”

Since construction began,” Mr. MacPherson told the board, “never once did a single person come over to talk to me, to complain . . . and this job could not have been more conspicuous.”

He does not plan to use the property as a motel, but “Because I was under siege, I applied for a motel permit the moment I got my certificate of occupancy,” Mr. MacPherson told the board. “I have one intent: to use it for affordable housing for my staff. We have a real problem in Montauk, which is there is nowhere for the workers to live. Gurney’s has bought motels for this use, Montauk Yacht Club has bought motels for this use. All these businesses have bought motels because they need to put up their housing.”

Mr. Cirillo summarized what the Z.B.A. is facing, when he asked Mr. Pasca whether the board needed to make two decisions, beginning with the timeliness of the appeal. Only if the appeal is found to be timely could the board even consider the abandonment question, Mr. Pasca said.

“We need to get legal counsel from the town’s attorneys,” Mr. Whelan said. At the conclusion of the over-four-hour session, the board agreed to keep the record open, to allow time to examine various documents as well as to seek advice from the town’s lawyers.