Court Rejects Ditch Lawsuit

A State Supreme Court Justice has rejected a lawsuit brought by the owners of a Montauk Shores Condominium trailer against the East Hampton Town Zoning Board of Appeals.

Tim and Peggy Dempsey had sought to replace their 570-square-foot residence “with an 870-square-foot mobile home with 280 square feet of decking, or a 51 percent increase in size,” Justice Joseph Farneti wrote in his May 2 decision, which was received by the town on Monday. The tiny plot on which the trailer sits is 1,160 square feet.

The decision comes almost exactly a year after the zoning board, in a split 3-2 vote, turned down the Dempseys’ application. The site is one of several in a row of trailers landward of a seawall that separates the trailer park from the ocean. The Dempseys had needed a special permit because of the structure’s proximity to the ocean, as well as several variances.

The couple’s lawyers, the firm of Tarbet & Lester, argued that the Z.B.A. had “failed to adhere to its own precedent,” citing three approvals issued by the board in 2013 and 2014 for houses in the same oceanfront row. The three, however, were for smaller houses, two being 765 square feet and the other 610, Justice Farneti said in his four-page decision.

The court cited the town code regarding special permits, noting that one yardstick is “the lessening of danger to life and property caused by coastal flooding and storms.” During the zoning board’s deliberations on the application, David Lys, a member, said that the proposed structure “would produce more damage. Is this the right design for a home in this location?”

Justice Farneti concluded that the board was not acting in an arbitrary or capricious manner. “The Z.B.A. could rationally conclude that the detriment the proposed development posed to the neighborhood outweighed the benefit sought by the petitioners.”

The town was represented in the case by John Jilnicki, a town attorney.

Even had Justice Farneti sided with the Dempseys, it was not clear that the new structure could have been installed as proposed. During its deliberations, the board did not take into account that the land in question is in a designated Federal Emergency Management Agency flood zone. In a more recent application, that of Mike Lukacs for Unit 22, which is in the same row of trailers, the Z.B.A. approved a structure raised 22 feet above grade, as called for by FEMA. The elevations for the trailers in the oceanfront row vary, but some elevation is required, which was not mentioned in the Dempseys’ proposal.

Ann Glennon, East Hampton’s head building inspector, said last year that the department would no longer issue building permits for structures non-compliant with FEMA.