On Wednesday, July 10, at the same time customers at Duryea’s Lobster Deck may have been sipping a crisp Sancerre or Chablis, enjoying cocktail hour while awaiting the sunset over Fort Pond Bay, 15 miles away, a very different type of vibe was in the air at East Hampton Town Hall. There, the town’s planning board had been scheduled to take up the site plan for Duryea’s. If it was cocktail hour at Town Hall that night, it was Molotov cocktail hour, as an attorney for Marc Rowan, the owner of Duryea’s, blasted the board with a letter that brought the scheduled review to a screeching halt.
In the letter, which had been delivered that afternoon and was addressed to the planning board’s chairman, Samuel Kramer, Gayle Pollack, of Morrison Cohen LLC of Manhattan, accused the board of working in concert with the entire East Hampton town governmental apparatus to “shut down Duryea’s.”
Duryea’s had been seeking site-plan approval which would give it the go-ahead to install a state-of-the-art septic system across Tuthill Road from Duryea’s Lobster Deck on land the town says is zoned residential. It also is seeking a special permit to allow it, going forward, to legally operate the restaurant that is already onsite.
Duryea’s had launched three separate lawsuits against the town last year. Early this year, Michael Sendlenski, then head town attorney, had negotiated, and signed off on, settlement between the town and Duryea’s.
After a firestorm of criticism, the town reversed course, and sought to negate the settlement, with claims that Sendlenski was not authorized to sign off on the agreement, and that the town board had not properly taken the settlement up for a vote. New York State Supreme Court Justice David Reilly, in whose courtroom all matters Duryea versus East Hampton Town will be decided, has stayed the settlement, allowing both sides to mount their legal arguments, and Duryea’s to continue operating the
restaurant, at least for this season.
Pollack’s letter to the board begins by objecting to a memorandum prepared by JoAnne Pahwul, assistant planning director for the town, regarding Duryea’s. In the memo, Pahwul criticized the applicant’s efforts to further the site-plan review process.
Chairman Kramer read the letter into the record July 10. “The broad scope of Ms. Pahwul’s comments on the application,” Pollack writes, “concerning everything from the zoning districts to apply to the property, to the review of outdoor seating, to requests for additional information about the patents, makes clear that the planning board is reviewing the application outside the requirements of the settlement clause.”
“Further, the planning department’s focus on issues that are not raised in the application, but are central to the article 78 proceedings pending between the town and Sunrise Tuthill, show the planning department’s coordination with, and efforts to support, the town board in its litigation with Sunrise Tuthill,” the letter continued. Sunrise Tuthill is Rowan’s company that owns Duryea’s.
“It is clear that the planning board has joined in the town’s coordinated litigation strategy, along with town board, the building department, and the zoning board of appeals to shut down Duryea’s. Given this, Sunrise Tuthill objects to further proceedings on the application” until Justice Reilly makes a final ruling on the stipulation of settlement, Pollack concluded.
Clearly incensed, Kramer first addressed Pollack, who was in the audience, directly, asking her if, in fact, she did not want any discussion of the application to take place. “That is correct,” Pollack said.
Kramer then responded to the letter. In it, Pollack had described that evening’s site-plan review as a “public hearing.” “Today is not a public hearing,” Kramer responded. “This is a work session. If, indeed, we are going to be dealing with the Sunrise Tuthill application, this is not a public hearing that has to be noticed, has to be published, and has to have a specific time to allow the public to be at the public hearing. That is number one.”
Kramer continued, “Number two, the letter makes certain references to the procedural history, the litigation that has gone on. This body was never a party to any litigation to date. We are not a respondent in an article 78 proceeding. We are not named in any action.”
Number three, Kramer said, Pollack’s conclusion that the planning board was working in concert with the town board and multiple town departments to “‘shut down Duryea’s’ is flatly false. This board, this body is an independent body. We do not answer to the town board. We do not answer to anyone but this board.”
Steven Stern of Sokoloff Stern LLP spoke next. He is advising the planning board on the application from Duryea’s. “There is no coordinated litigation strategy to shut down Duryea’s,” he said. “This is just about seeing that Duryea’s complies with the law and follows the proper processes involved in light of the stay of the settlement agreement.” Stern said that it had been his understanding, from discussions initiated by Pollack and Rowan’s’ other attorneys in open court that Rowan wanted the site plan process to move forward, even while all sides wait for a final decision on the settlement.
Kramer again asked Pollack if she wanted that night’s review session to be tabled: she again said she did. “I do note that he represents the town board, the ZBA, and now the planning board,” she said of Stern. “But in terms of my and his discussions, I don’t think there is any benefit in trying to hash them out. I think that Mr. Stern and I have continually disagreed.”
Both sides are due back in court on the original three Article 78 suits August 16. A fourth suit launched by Sunrise Tuthill against the ZBA and the Tuthill Road Association, is due back in court August 21.