David Eagan, the attorney for the Concerned Citizens of Wainscott, which has one lawsuit pending over a proposed Wainscott development and another waiting in the wings, blasted the East Hampton Town Attorney’s office this week for working too closely with real estate lawyers who are representing applications before the town.

    He referred in particular to a statement made by the developer Michael Davis, whose certificate of occupancy for 411 Montauk Highway in Wainscott Mr. Eagan was challenging before the town zoning board of appeals on March 27.

    The town’s senior building inspector, Tom Preiato, had issued a dual-use certificate of occupancy in June of last year allowing the property to be used for both residential and business purposes. The property is in a residential zone, but had commercial uses prior to current zoning regulations. Last month, the town planning board approved a site plan for Wainscott Wombles L.L.C., allowing Mr. Davis to tear down the commercial building there and build a new one in its place as well as a small house and garage. Mr. Eagan is challenging the legality of the certificate of occupancy.

    During the hearing on his challenge, Mr. Davis said, “I asked my attorney what could be built on the property, she, in turn, consulted with the town attorney, John Jilnicki, and the planning board attorney, Kathryn Santiago, who also prosecutes code violations for the town. They both agreed that ‘dual usage,’ that both a commercial building and a residence, was permissible under East Hampton Town Code.”

    “The town attorneys are not in the business of telling people what they can do. They are there to advise the planning board, not the applicants,” Mr. Eagan said Friday, adding that the close relationship of the town attorneys to the attorneys appearing before the planning and zoning boards was an unhealthy one for the town.

    “You can study the law and code,” he said, “or you can pick up the phone and ask the town attorney, ‘Can I get away with this?’ ”

    On Monday, Mr. Davis’s attorney, Denise Schoen of Tarbet, Lester, and Schoen, took exception to the suggestion implied in Mr. Eagan’s comments that there was a “good old boy” club mentality involved in the issuance of the certificate.

    Ms. Schoen said she had not been involved when the question of dual usage first came up, but that Laurie Wiltshire of Land Planning Services, who is also working for Mr. Davis, had hit upon the matter. “When the question came back to me I wanted to research it myself. I wrote it all out; I sent it back to Laurie,” Ms. Schoen said Monday. “It wasn’t like he said, ‘Can I do this?’ and I called my friends.”

    Ms. Schoen’s partner Jonathan Tarbet also bristled at Mr. Eagan’s comments.

    “Is David Eagan not a real estate lawyer? I guarantee you David Eagan speaks to the town attorney’s office to get guidance,” Mr. Tarbet said. “As a local attorney, it wouldn’t be wise to talk to Tom Preiato without also talking to the town attorneys.”

    In a June 2, 2011, letter to Land Planning Services regarding his determination, Mr. Preiato wrote, “The property is unique as it has received a use variance for a commercial use in 1975. Specifically, the pre-existing, nonconforming use of retail and a professional office had been rendered a permitted use and still is at present.” He said that a house with a detached garage would be allowed on the property.

    The 1975 finding notes that “the premises do not lend themselves to the residential use for which they are now zoned,” and goes on to allow the change in use of the premises from a single diner to an enlarged structure that would then house both a retail shop and a real estate office.

    Mr. Eagan argues that because the site received a use variance for commercial operation in a residential zone, it is not eligible for a dual usage certificate of occupancy, and that it should revert to its current zoning status — residential only — or continue as a business-only use, as allowed by the variance.

    In arguing the case before the zoning board, Ms. Schoen presented an affirmation from another lawyer, Richard Whalen, a former deputy town attorney and a zoning board attorney for many years.

    Mr. Whalen argued that the intent of the zoning board in 1975 was to continue the pre-existing, nonconforming status under which, he argued, Mr. Davis was entitled to build both a house and a business on the property, an argument that seems to be borne out in the original Sept. 30, 1975, finding, when the board wrote, “The variances requested are granted for the continuation of the prior nonconforming use.”

    Mr. Preiato would not comment on the case.

    Mr. Eagan has vowed to continue the fight in court if the zoning board rules against him, and warned that Mr. Davis would be, in effect, rolling the dice if he proceeded to build after such a ruling. Concerned Citizens of Wainscott filed suit against the planning board and Wainscott Wombles L.L.C. last month, seeking to reverse the planning board’s site plan approval.

    “Under law, since this suit is still pending he will be building at his own risk,” Mr. Eagan said.

    Ms. Santiago would not comment on the case, due to the current litigation.

    For his part, Mr. Davis expressed exasperation with the system during his statement to the board.

    “A handful of people have now managed to delay the start of construction three or four months, and consequently we cannot be in our new office by this season as planned. Obviously this has caused both logistical and financial hardship. Something is broken with the system if a well-planned development can be bushwhacked at the 11th hour.”

    A hearing on the Sagaponack Village budget has been scheduled for Monday at 3 p.m. in Village Hall.

    “Total spending rises from $663,180 to $708,059,” Mayor Don Louchheim said in a letter on March 27. In the statement, he wrote that the “new budget projects modest increases in both spending and non-tax revenues, with no increase in the village property tax rate for the fifth consecutive year.”

    The tentative budget was introduced on March 19. During a work session last Thursday the board made no changes, according to Rhodi Winchell, the village’s clerk and treasurer.

    The proposed 2012-13 budget is within the state’s 2-percent cap on tax-levy increases. The village will end the current fiscal year with a surplus to be held in a reserve, with possible appropriations toward the highway and public works funds. An increase in projected revenue comes from $25,000 in anticipated building permit fees.

    According to the mayor, more than half of the proposed increase in spending is to provide a reserve for “bridge” financing, in case there should be any discontinuation of services now provided by the Town of Southampton. A large expenditure in the budget is a $37,600 microfiche filing program, necessary for records management, he said.

    In addition to the budget, other news of the Sagaponack trustees included a newly formed tree committee, whose members are eager to start removing dangerous trees and branches from roadsides. The work is normally done by the Town of Southampton.

    The tree committee has prepared a form for the public to report trees that may be of concern. The village clerk will put the form on the village’s Web site, and it will be forwarded to the tree committee. Once the village has an idea of the number of trees in need of attention, it will ask for bids from private contractors if the trees in question are not already on a town list for removal.

    After putting all capital spending on hold while sorting through the effects of past financial mismanagement, which resulted in a $27.2 million deficit, the East Hampton Town Board considered a three-year capital spending plan on Tuesday, and is expected to approve it at a board meeting tonight. The plan calls for spending $2 million next year, and $7 million over three years.

    Because of the town’s financial crisis, Town Councilman Dominick Stanzione, who has been working on the capital plan, said at the board’s meeting on Tuesday, “a substantial amount of capital work needed to wait, and we’re running into a situation” with regard to the 2-percent cap on tax levy increases instituted by the state this year.

    According to Len Bernard, the town budget officer, however, because East Hampton Town’s tax levy decreased by 1.5 percent this year, the town may be allowed to increase taxes next year beyond the 2-percent cap, by up to 3.5 percent. Mr. Bernard said that after factoring in expected increases in fixed costs, such as employee benefits and payments on existing debt, the town has the ability to raise $800,000 more in taxes than it did this year.

    If the town borrows $2 million for some of the capital projects on its list, about $300,000 for debt service would have to be added to next year’s annual budget. Town Supervisor Bill Wilkinson, Mr. Bernard said, has asked that the remaining $500,000 be earmarked for any potential increases in that budget.

    Some projects for next year are repairs to town docks, rehabilitation of sports courts, and the purchase of heavy equipment for the Highway Department, such as a street sweeper.

    The capital plan is an outline, laying out a timeline for accomplishing major projects and making certain large purchases. It may be amended by the board after being adopted. The board must vote on issuing bonds for each  project, and each project would be subject to permissive referendum.

    Some discussion on Tuesday centered on a septic system for the Three Mile Harbor Trailer Park. The issue was whether to install a functioning system there at an approximate cost of $600,000, beginning with an allotment of $300,000 next year, or whether the work should be pushed back another year.

    The town once owned the trailer park, but sold it to the 16 families who live in low-cost housing there. There are chronic problems with the septic system, which is pumped regularly to keep it running. The town has waived the fee for dumping the sewage at its scavenger waste plant, at an annual cost that was reported variously at Tuesday’s meeting at $45,000 or $50,000, or closer to $79,000. The cost fluctuated depending on the amount of sewage being pumped. Now, however, the plant is operating as a transfer station only and the town pays a septic waste carter to haul what is dropped there to another facility.

    Councilwoman Theresa Quigley argued for installing the new system at the trailer park right away, citing its proximity to the head of Three Mile Harbor and noting the town’s obligation to right the situation. “It’s 16 local families that live there year round,” she said. “In my mind we sold a pig in a poke.”

    Mr. Wilkinson suggested that rather than proceed with plans for the septic system, the town consider a new type of wastewater system recently outlined for the board by its designer. Councilman Stanzione noted that the town may also have to implement a stormwater management plan, which is now required of all municipalities.

East Hampton Town

Trails Acquisition

    A 6.7-acre tract in the Stony Hill woods of Amagansett to be deeded to the town contains trails that connect sections of the extensive trail system in the area, Scott Wilson, the town’s director of land acquisition and management, told the East Hampton Town Board on Tuesday.

    The site, off Laurel Hill Lane, was set aside as a reserve when a subdivision was created. Under site plan approvals, such reserves must be given to the town or held by a homeowners association.

    The land is surrounded by preserved properties owned by the town, county, and the Peconic Land Trust, Mr. Wilson said.

Housing Committee?

    After convening a “housing needs discussion group,” which compiled data on existing and needed housing and presented it to various community groups, Town Councilwoman Theresa Quigley said on Tuesday she would like to set up a “brand-new committee to address how do we move forward . . . to look at this chart and see what does it mean to us.”

    “It’s all about planning,” she said. She asked each board member to provide suggestions for potential members.    

North Haven

    The 2012-13 budget of the Village of North Haven was adopted at a hearing on Tuesday evening. No members of the public attended.

    Total expenses are budgeted at $1,326,330, an increase of 1.38 percent, with the tax rate expected to remain the same for the fifth year in a row, at .5038 cents per $1,000.

    Compensation for the mayor is $7,500, and $1,000 will be paid to each of the four village trustees.

    A restructuring of East Hampton Town’s Human Resources Department, expected to be put to a vote at a town board meeting tonight, will eliminate the department head position held by Pat Breen, and, after the transfer of two department staffers, leave just one person in the department.

Ms. Breen, who has been the town personnel officer for 12 years, said she was told on March 28 of the move, and will be working at Town Hall until Friday. She will remain on call, as needed, with 48 hours’ notice, until May 1, to provide any help needed with the transition. After that, the Springs resident said Tuesday, her future is unknown. “I didn’t plan on leaving, but I have no choice,” she said.

“I don’t know how one person is going to do four people’s jobs,” she said of the restructuring, which has been in the works for some time as part of Town Supervisor Bill Wilkinson’s efforts to trim the town’s work force as well as costs.

Ms. Breen said she had been told that the elimination of her position was “not about performance” but instead just part of the effort to streamline government services.

Since taking office in 2012, Mr. Wilkinson’s administration has taken several similar steps, incorporating the harbor patrol into the Police Department, and creating a Division of Public Safety that encompasses the Ordinance Enforcement and Animal Control Departments.

East Hampton Town

Energy Forum at Town Hall

    Small-business owners have been invited to a forum at East Hampton Town Hall on Monday to learn about ways to reduce energy consumption and save money. Sponsored by the Long Island Power Authority, the town, the East Hampton Business Alliance, and other organizations, the forum will provide information about free energy assessments and LIPA programs that offer rebates on energy-efficient upgrades. Federal and state tax incentives available for businesses seeking to reduce their energy consumption will be discussed as well. The program will begin at 10 a.m. Those with questions have been asked to get in touch with Joel Halsey of the Planning Department.

On Disabilities Compliance

    At a meeting last week, members of the East Hampton Town and Village Disabilities Advisory Committee asked the East Hampton Town Board to support its efforts to increase compliance, at public places within the town, with the federal Americans With Disabilities Act guidelines on handicapped access. Although provisions of the act do not always apply — if buildings were constructed prior to its adoption, for instance — the law says that if removal of barriers to access is “readily achievable,” it must be done. The committee produced a referral form for people to report problematic locations but wants to implement a more proactive plan to increase compliance by contacting the owners of targeted sites and having village or town officials, such as the building inspector, make follow-up visits.

    While the village has begun to work with the group on its effort, Glen Hall, the committee chairman, said, the town board has not had a liaison at the disabilities group’s meetings for more than two years.

    There is seemingly only one obstacle remaining between Michael Davis and his Wainscott Wombles development on the corner of Montauk Highway and Sayre’s Path, but that last obstacle may be impassable, at least according to David Eagan, an attorney for the Concerned Citizens of Wainscott and a neighbor, who is challenging the right of Mr. Davis to proceed with his plans to tear down the building there and construct a similarly-sized one with a garage, small house, and parking spaces behind it.

    Concerned Citizens of Wainscott are appealing a June 2, 2011, determination by the town’s senior building inspector, Tom Preiato, that allows Mr. Davis to build a 600-square-foot house and garage on a commercially used parcel. The East Hampton Town Zoning Board of Appeals will hold a hearing on the matter on Tuesday at 7:30 p.m.

    Mr. Davis named it Wombles after a fictional character from his childhood.

    “Wombles were created by author Elisabeth Beresford, originally appearing in a series of children’s novels,” he said in an e-mail. The alliterative sound of Wainscott Wombles along with the image of these little gnome-like characters cleaning up Wainscott appealed to him, hence the name.

    The approximately 13,000-square-foot property is on the south side of Montauk Highway in Wainscott and is zoned for residential use, but because it had been used commercially before current zoning went into effect, it is exempt from some residential restrictions. It was on this basis that Mr. Davis applied for and was granted a “dual use” certificate of occupancy by Mr. Preiato.

    The 1,300-square-foot building on the property now was originally constructed in the 1960s as a diner. It sits toward the rear of the property with a white gravel parking area taking up much of the front of the parcel.

    The house Mr. Davis plans to build necessitates the dual use certificate, according to the presentation made by Mr. Davis’s attorney, Denise Schoen, of Tarbet, Lester and Jones, during a hearing for site plan approval in front of the East Hampton Town Planning Board on Dec. 7. Mrs. Schoen told the board, which later approved the site plan, that there were at least 17 other examples of dual usage certificates of occupancy in the Town of East Hampton. The Planning Department countered that these examples were not apropos.

    Mr. Eagan said this week that Mr. Davis’s arguments in favor of the dual use certificate are just so much fictional fluff.

    In 1975, he said, the then-owners of the property applied to the East Hampton Town Zoning Board of Appeals for a use variance to change the building from a diner to an antiques store and a real estate office and to expand the building by about 20 linear feet. The zoning board granted the request.

    “The legal effect of the use variance in 1975 was to terminate the pre-existing, nonconforming diner use,” Mr. Eagan said on Monday.

    “Under New York State law,” he said, “a use variance is not considered to be pre-existing or nonconforming. It is considered a permitted use.” Meaning, Mr. Eagan said, that a house can be built on the property using current zoning, or a business can be built applying the variance, but not both.

    Mr. Eagan explained that the zoning board, which has to be modeled on New York State law, can hear two types of appeals. One is the traditional request for variances from property line setbacks.

    “The second,” Mr. Eagan said, “is a use variance.” Such a use variance is extremely rare, Mr. Eagan said, requiring proof that without the variance the property is not economically viable. “This may be the only use variance that exists in East Hampton,” he claimed.

    If you depart from the strict rules of the variance, Mr. Eagan said, you have to revert to the current zoning code for the property.

    Ms. Schoen does not agree with Mr. Eagan’s interpretation. “Here’s the missing link,” she said about his argument, “there is no New York State case law that says that says once you get a use variance you’re stuck with it.”

    The hearing on Tuesday in front of the zoning board is to determine the merits of Mr. Eagan’s appeal and not the merits of the project itself.

    “We are not making any type of decision on the merits of the project, only on the determination of the building inspector,” Alex Walter, the board’s chairman, said.

    Whichever way the board rules, Mr. Eagan believes the matter will end up in court. For his part, Mr. Eagan said, referring to the certificate of occupancy issued by Mr. Preiato, “This is never going to survive judicial scrutiny.” Mr. Eagan then allowed that if he were Mr. Davis, he would probably take the matter to court if the board ruled against him.

    “There’s two sides to every argument. I genuinely believe this is the correct interpretation. In my mind the code interpretation is not a stretch at all,” Ms. Schoen said, adding that Mr. Eagan was arguing for a broad interpretation. “Ours is code-based.”

    Ms. Schoen’s partner, Jonathan Tarbet added, “If he wants that changed he should talk to the town board or run for office.”

    The East Hampton Town Zoning Board of Appeals ruled on Tuesday in favor of two applicants who needed variances to install septic systems. In a unanimous decision, the board found that a variance for a third floor was appropriate because it provided a way to put in a multi-ringed septic system that would conform to the county health code and help protect Lake Montauk.

    At the same meeting, the board granted a 60-foot variance from the required setback from the oceanfront dune crest in Amagansett so that a septic system could meet county regulations.

    Seven condominium units in two buildings are planned for the Lake Montauk property, a 3.4-acre parcel at 374 West Lake Drive, which has resort zoning. Because the land contains wetlands and is very close to the water table, there appeared to be no site for a septic system. The applicants’ solution is to fill the area between the new buildings and West Lake Drive, and to place the septic system in the fill.

     Each unit would have two floors, totaling 500 square feet. The property around the building would be graded up to the seven to eight-foot level of the first floor. The third floor would, in effect, be the basement, hidden beneath the livable areas and used only for storage.

    The only problem with the plan, and the reason why the town planning board, which had the application before it for site plan review, sent it to the zoning board, is that the zoning code prohibits three stories.

      Brian Gosman, a board member from Montauk, began the deliberations Tuesday. “Most of the complaints that came from the March 6 hearing were the actual height and the looming effect it would have,” he said. “Even if they were to build a two-story structure they could still build a taller building than they are proposing,” he said. He added that the buildings could have been three feet higher than now proposed.

    “I feel like this area of Montauk could use some improvements, some new infrastructure. I feel that a condo use as opposed to a hotel use will be better suited for this property and have less environmental impact,” he said.

     Sharon McCobb, another member of the board, told the board that the third story made the proposal “environmentally more stable.” Lee White, a board member, was in support of the variance, as were Don Cirillo, the vice chairman of the panel, and Alex Walter, the chairman.

    The only problem board members saw was that a mound of fill had already been placed on the property.

    “We do need to talk about the fill, though. It’s a concern,” Mr. Walter said. He asked the board to require that the fill be tested and that, if it were found to be unacceptable, make sure it would be taken out.

    The matter of where the fill had come from seemed to be answered during the March 6 hearing. Steve Kalimnios, whose family’s corporation North Harbor Realty owns the property, also owns the Lake Club and Marina on the eastern side of Lake Montauk. Permission to dredge there recently received a time extension. It seemed that the fill had come from that project, but Mr. Walter said after the meeting that the origins were still uncertain.

    In the second decision Tuesday involving a septic system, the board ruled in favor of unnamed applicants who own Pandion L.L.C., and plan to build on the last undeveloped oceanfront lot on Marine Boulevard in Amagansett. Pandion won the right to place a one-story house with a deck only 40 feet from the dune crest where the zoning code requires 100 feet.

    A heated exchange had occurred between Mr. Cirillo, acting as chairman at the public hearing on the application on Feb. 28, and Brian Frank, the East Hampton Town Planning Department’s chief environmental analyst, when Mr. Frank, who strongly opposed the requested variances, asked for a two-week extension of time to allow the Planning Department to study the septic system. He argued, in part, that the variances would create a dangerous precedent.

    A push this week by Town Councilwoman Sylvia Overby to suspend or rescind a resolution to sell a piece of public land in Montauk and first obtain an appraisal on it was rejected and prompted angry outbursts by Supervisor Bill Wilkinson and Councilwoman Theresa Quigley.

    Ms. Overby and Councilman Peter Van Scoyoc had voted against the sale of a 3,700-square-foot piece of a town alleyway, which bisects the Ronjo motel, for $35,000 to the motel’s new owners, Chris Jones and Lawrence Siedlick, in the absence of an appraisal and an assessment of the purpose and need for the alleyway system.

    Supervisor Wilkinson defended the sale price, which, he said, he had pulled “out of the air.”

    Mr. Jones and Mr. Siedlick, who were at the meeting on Tuesday, had offered to pay for the appraisal, Ms. Overby said. Mr. Wilkinson at first agreed with the idea.

    But, he asked, “What does having an appraisal have anything to do with the board’s action [in approving the sale]?”

    “I’m saying they’re two independent actions,” he said. “If you wish to do an appraisal, we don’t have to suspend the original resolution.”

    New York State Assemblyman Fred W. Thiele Jr. said in a telephone interview this week that, though there is no express provision in state law requiring an appraisal before selling town land, according to the New York State Constitution, “you cannot make a gift of public property.”

    He said that “you need an appraisal to be able to document” that officials, in approving a sale, have properly maintained their fiduciary duty to taxpayers and their property, and to defend the sale in case of questions by the state comptroller or a lawsuit by taxpayers.

    Ms. Quigley said Tuesday that she didn’t support getting an appraisal because she believed appraisers would set the price for the alley piece at $5,000. “I think the rest of the money is a gift to the town,” she said of the difference in the sum offered.

    She railed against Ms. Overby and Mr. Van Scoyoc, accusing them of following a policy of “delay, delay, delay, and stall, stall, stall.”

    “I don’t believe in your way of doing government,” she said. “I believe that government should be made by us. That’s what we’re here for.”

    Ms. Overby noted that the land is not owned by the board, but by the taxpayers. “We need to make sure we are doing our fiduciary responsibility — getting an appraisal,” she said. “It is not trying to stop government. It is trying to act responsibly.”

    “You’re going to have a permissive referendum on this property,” Ms. Overby warned. Taxpayers can challenge the sale through the permissive referendum process provided they collect a certain number of signatures on a petition within a limited time.

    “Go ahead, let’s have it,” Mr. Wilkinson said.

    Councilman Dominick Stanzione provided the third vote against Ms. Overby’s request. However, later in the meeting, Ms. Quigley announced that she had received a text — from whom she would not say — saying that an appraisal on the land had already been ordered. She questioned Ms. Overby about why an appraisal had been commissioned without board authorization.

    Ms. Overby said yesterday that it had not been requested by anyone representing the town.

East Hampton Town

Accabonac Excavation

    The East Hampton Town Trustees will hold a special meeting today starting at 10 a.m. in their Bluff Road, Amagansett, office. The subject will be the excavation of the entrance to Accabonac Harbor.

Draft New Lighting Law

    Councilwoman Theresa Quigley and members of a lighting code committee presented a new draft of outdoor lighting legislation on Tuesday. The draft will be reviewed by town board members and discussed at a future meeting.

    Key elements reviewed by Ms. Quigley include a provision that light sources not be visible beyond property lines and that light falling onto a neighboring property may not be in excess of a proscribed amount, “unless required for safety and security,” according to the draft. The proposal also calls for all exterior light sources to be energy efficient and to be positioned at an angle of 90 degrees or below, with several exceptions, including uplighting of trees and of historic buildings and museums that are not in a residential zone.

    The proposed law would allow any legally pre-existing outdoor lighting not meeting the new requirement to remain. Those building something new, or renovating more than 50 percent of a property, would be required to comply with the new rules. Others doing work that requires a building permit would be required to comply with the new law only on that portion of the premises that is being improved.

    In order to have time to discuss it and then have a hearing on the new law before adopting it, or a revised version, the majority of the town board agreed Tuesday to extend by 60 days a suspension of enforcement of the current lighting law for commercial properties. It was due to expire at the end of this month. Ms. Quigley and Supervisor Bill Wilkinson voted against the extension.