Judge orders ZBA to hold off ruling on appeal of CO

Duryea’s Lobster Deck Good To Go In 2019




As the battle royale currently being fought between the owner of Duryea’s, his neighbors, and the Town of East Hampton rages on, a May 21 hearing was scheduled before the town Zoning Board of Appeals to consider reversing a certificate of occupancy issued for the site in February.

From the time the ZBA scheduled the public hearing, however, a state judge ruled that the board cannot change the status of the CO this year. The judge also ruled that Duryea’s Lobster Deck on Fort Pond Bay in Montauk can continue to function as a restaurant for the 2019 season, despite the objections from neighbors and the town.

Meantime, in a court document dated May 15 from one of the lawyers representing Duryea’s and that complex’s owner, Marc Rowan, an allegation is made that East Hampton Town Supervisor Peter Van Scoyoc asked Rowan to file a lawsuit against the town “to provide political cover for the resolution.” However, two of those who attended the meeting in question seemed to contradict this after being contacted by a reporter.

Steven Stern, the attorney who has been retained by the town to handle the Duryea’s dispute in state court, questioned the placement of the allegation in the legal memorandum of law.

The May 15 memo of law to Justice David Reilly was written in a failed effort to bar the East Hampton Town ZBA from hearing the appeal from an organization of neighbor, the Tuthill Road Association, which has been funded, in part, by a campaign on the GoFundMe, crowdfunding website.

The town’s principal building inspector, Ann Glennon, who issued the CO in February, has since said that she felt pressured to do so by the town attorney’s office.

Rowan had filed three lawsuits in state court against the town in early 2018 after withdrawing a site-plan application that had been submitted to the East Hampton Town Planning Board requesting approval for a major redo of the dock complex, including the restaurant, Duryea’s Lobster Deck. The town’s lead attorney, Michael Sendlenski, signed off early this year on a settlement of the suits with Rowan, which allowed Rowan to operate and enlarge the restaurant. The settlement also  agreed to expedite the site-plan process for Duryea’s.

That settlement engendered a firestorm of controversy, with critics questioning the reasons Sendlenski gave for agreeing to it. The town has since hired an outside attorney, Stern of Sokoloff Stern LLP in an effort to annul the settlement.

The May 15 memo was written by Gayle Pollack of the Manhattan law firm of Morrison Cohen LLP. It echoes a similar allegation made by Michael Walsh, a Water Mill-based attorney litigating Rowan’s claims in New York State Supreme Court in Riverhead, in a May 2 memo.

David Buda, who was instrumental in bringing the original settlement to light, both by sharing copies of it with the media, as well as speaking out at town board meetings, circulated the May 15 memo, as well. In a note on page 10 of the memo, it reads, in part, “In February, 2017, after discussing a resolution for several issues relating to (Rowan’s) property, the Town Supervisor asked petitioner to file suit to provide political cover for the resolution. Petitioner did so . . .” Buda described the note as a “bombshell” in an email.

But Edward Burke, another attorney representing Rowan said that the meeting, which happened on February 14, 2018, not 2017 as described in the note, was between him, Van Scoyoc, Sendlenski, Councilman David Lys, and Rowan. He said he did not recall Van Scoyoc mentioning “political cover.” Rather, Burke summed up the thrust of the conversation by saying, “The only way to get this right is to get a judicial determination or interpretation.”

Rowan was contacted through a spokesperson, and gave a similar account of the meeting.

Stern called the allegation “an irresponsible, misleading statement to put in any legal papers without any factual basis.”

Van Scoyoc and Lys would not comment, because of the ongoing litigation.

In a copy of the transcript of the May 15 hearing on file at the ZBA office, Justice Reilly tells the lawyers involved that he “has temporarily stayed the enforcement” of the settlement Sendlenski had reached with Rowan. He goes on to say that the certificate of occupancy issued in February of 2019 “remains in place pending further the order of this court.” Reilly allowed the ZBA hearing to go forward, while saying that if the ZBA ultimately decided to revoke the CO, the matter would end up back in his courtroom. He also ruled that the restaurant can continue to operate for this season as it has the past two years.

Stern said he felt strongly that Rowan’s suits will be dismissed after both sides fully present their cases, and that the CO will eventually be reversed.

Burke said that he believes that Sendlenski was fully authorized by the town to sign off on the settlement, and that the points made by the opposition are, essentially, moot.

t.e@indyeastend.com