The East Hampton Town Zoning Board of Appeals lost another Article 78 lawsuit last week, this time against 175 Atlantic L.L.C., controlled by Farrell Builders. It is the fourth time this year the Z.B.A. has been taken to court and has lost.
“It’s almost impossible to get their rulings overturned,” said Rick Whalen, an attorney who often presents applications to the Z.B.A. Mr. Whalen, of Filer Whalen P.L.L.C., recently won two appeals against the town, his first victories. “The town should win the majority of the cases against the Z.B.A. In the ‘90s, we lost one Article 78.” Mr. Whalen was the Z.B.A.’s lawyer from 1989 to 1996.
“That is amazing,” said Jon Tarbet, a land use lawyer with Tarbet & Lester. “I bet they did not lose four cases over the last 15 years.”
The zoning board had denied a natural resources special permit to demolish a nonconforming residence and cottage at 175 Atlantic Avenue, just off the Coast Guard Beach in Amagansett. Without that permit, Farrell Builders could not construct their planned 3,240-foot house, with a pool and extensive decking. The Z.B.A. wanted to see a smaller footprint in the dunes.
The application has gone through changes since it was first submitted in 2018; the Z.B.A. denied it the year after. After that first denial, “extensive settlement discussions ensued,” which led Farrell to reapply in 2022, after a Z.B.A. attorney told the builder the board was “amenable to a new and improved plan.”
However, at the Dec. 6, 2022, public hearing, the project was roundly panned. Two dozen members of the public showed up to oppose it; no one spoke in favor. The Z.B.A. was unanimous in its rejection, saying that the project was not in harmony with the neighborhood and that the proposed building was “massive.”
In deciding for Farrell, Suffolk Supreme Court Justice Thomas F. Whelan was critical of the Z.B.A.’s determination.
“Petitioner contends that the Z.B.A. succumbed to numerous letters in opposition to the application, as well as petitioner’s relationship with Farrell Building Company,” he wrote. “The letters represent nothing more than general community opposition, and lack any sort of objective, factual basis for supporting a denial of the required N.R.S.P.”
Justice Whelan was also swayed by Farrell’s lawyers’ criticism of Joan McGivern, a member of the Z.B.A. whom they accused of having a conflict of interest. “McGivern is an attorney actively adverse to Farrell,” wrote the judge, “and affirmatively engaged in the application, spoke vocally in opposition to it, and then voted in favor of the denial.”
“The decision does not refer to any evidence in the record to support the denial, and the characterizations of the proposed structure as ‘massive,’ and ‘sprawling,’ is insufficient to warrant the denial of the application,” he wrote. He also questioned a 2018 planning department memo that characterized 175 Atlantic as containing dune habitat, noting that it is separated from the nearest dune by a parking lot and road.
Justice Whelan also noted that the old structures didn’t comply with setbacks, pyramid restrictions, elevation codes, or current building, septic, and electrical codes. The new house would.
“In the event that the Z.B.A. believes that its determination is correct, our office will file papers to appeal the Supreme Court order,” wrote John Jilnicki, a town attorney, in an email. “I do not believe that a decision has been made by the Z.B.A. as to whether to appeal the decision in this case.”
There are five other pending Article 78s against the Z.B.A. at Suffolk Supreme Court. Mr. Jilnicki said that “the vast majority of Article 78 proceedings are handled in-house,” and that the costs to the town are minimal.
The most recent, filed on Sept. 21 by Mr. Tarbet for Pamela and Andrew Kaufmann, is similar to 175 Atlantic. The Kaufmanns were denied a natural resources special permit and wetland and coastal setback variances for a proposed house at 50 Oyster Shores Road, East Hampton, in an Aug. 14 Z.B.A. ruling.
The zoning board said, in a unanimous determination, that the proposed residence does not fit in with the character of the neighborhood, noting that it would be nearly 100 percent larger than the existing house and too big for the size of the lot.
“The board finds that granting the requested variances will cause an undesirable change to the character of the neighborhood and create a detriment to nearby properties,” wrote Roy Dalene, the chairman of the Z.B.A.
“Even though the property needed wetland variances,” argued Mr. Tarbet in his petition, “the variances would result in the property becoming ‘much more conforming’ with regard to those setbacks. There were no proposed changes that would result in the property becoming more non-conforming. Only improvements were proposed.” The existing house was built in 1959.
“This is what the courts have told the Z.B.A. repeatedly,” Mr. Tarbet wrote. “Yet they routinely deny applications that would clearly benefit the natural resource the wetland regulations were adopted to protect. This is the most egregious part of the denial. In the year long process, neither the planning department nor the Z.B.A. even considered, discussed, or analyzed if there would be a detriment to the health, safety, or welfare of the town or neighborhood.”
In a phone call, Mr. Tarbet quoted Voltaire. By encouraging the Z.B.A. to deny such applications, he said, the planning department was making “perfect, the enemy of the good.”
He has already threatened to file another Article 78 against the town’s Architectural Review Board, should it not allow Rowdy Hall to paint its new Amagansett location black.
“I’m not sure why we have had a few [losses],” wrote Mr. Jilnicki. “But we are looking to make sure that the specific rationale for the Board’s decision is clearly set forth in the determination. The decision of the Board must be supported by the record (not just what is in the determination itself) so on appeal, specific information in the record, which the lower court also had, would be highlighted to the Appellate Division, in order to support the Board’s initial decision on appeal, in an effort to reverse the lower Court’s judgment.”
