'Abuse of Power' Lawsuits

Two lawsuits filed this week against East Hampton Town claim the town has engaged in a "coerced acquisition policy" in an attempt to force owners of lands it wants to preserve to sell them to the town.

The suits challenge the validity of the recently updated town comprehensive plan and the new zoning maps that were adopted along with it

They were filed in federal district court by William Esseks of the Riverhead firm Esseks, Hefter, and Angel, on behalf of Catherine Lederer-Plaskett and Rodney A. Lederer-Plaskett, the owners of 16 acres off Neck Path in Springs, and Salvadore, Eileen, and Anthony S. Iacono, whose chicken farm is on 7.7 acres on Long Lane in East Hampton.

"The town, through the exercise of its zoning powers, has the ability to reduce the market value of properties affected by the zoning code, such as by rezoning land," the lawsuits state.

The rezoning of properties that are on the town's Community Preservation Fund Project Plan, a list of lands the town hopes to protect or acquire, the lawsuits say, was "aimed at reducing the utility and value of numerous properties . . . that the town covets for its own acquisition but whose owners refused to sell voluntarily to the town."

The rezonings are designed to give the town, "in its capacity as a purchaser," an unfair bargaining advantage over landowners, as well as other potential purchasers.

By considering and adopting the rezonings at the same time that the town still "desired to acquire those properties for its own benefit," the town had a conflict of interest, the suits allege.

That action, Mr. Esseks said, violates his clients' constitutional rights to equal protection rights and due process.

Public purchases made with the Community Preservation Fund, which comes from the 2-percent real estate transfer tax, must be from willing sellers, according to the law.

In fact, the lawsuits allege, "the town's rezonings are such an arbitrary and gross abuse of the town's governmental powers," that they meet the definition of "larceny by extortion" under the New York Penal Law.

"The allegations are absolute rubbish and not based on any facts whatsoever," said Supervisor Bill McGintee yesterday. "We have no such policy."

The zoning changes enacted, he said, "have nothing to do with our C.P.F. program," but had been initially recommended by Dr. Lee E. Koppelman, a planner, and subsequent consultants hired to help draft the town comprehensive plan, including Horne Rose, a consulting firm, and State Assemblyman Fred W. Thiele Jr. and Lisa Liquori, a former town planning director, who worked together to complete a final draft of the plan.

"All we did was we moved forward with recommendations in the comprehensive plan that were long overdue," Mr. McGintee said. He noted that, though the Iacono and Lederer-Plankett properties are on the preservation fund list, "we have no offers on them."

"We've actually gone to great lengths to keep one process separate from the other," he said of the acquisition program and the rezonings.

The lawsuits claim that the town's proposal to rezone properties in which it was interested was a "threat," and that the town "underscored its threats by announcing to the public during the deliberations on the rezonings that landowners who agreed prior to the adoption of the rezonings to sell their properties to the town would be exempted from the zoning changes, but those who refused to sell would be rezoned."

The suits allege that the town "has a longstanding but recently intensified pattern and policy of coercing owners of subdividable vacant properties on the C.P.F. . . . acquisition list into selling their properties to the town against the owners' free will, at less than market value."

Mr. Esseks argues that many of the properties rezoned to five or 10-acre residential zoning under the new comprehensive plan will not be affected, for one of a number of reasons, including that they are already protected with easements or reserves, or are not large enough to subdivide even under current zoning.

Of the remaining parcels that are "truly impacted by the upzonings," according to the suit, approximately 90 percent are on the preservation fund list.

In addition, the lawsuits also claim that town agencies, such as the Planning Department and planning board, zoning board of appeals, and town attorney's office, "impose purposefully lengthy and unnecessary delays in the administrative land use and environmental approval processes for properties on the C.P.F. Project Plan list, especially during the subdivision review process."

Brad Loewen, the chairman of the town planning board, said yesterday that that assertion is "not true. The process goes through as it goes through whether a property is on the C.P.F. list or not."

In fact, Mr. Loewen said, memos from the Planning Department to the board outlining applications do not specify whether a property is on the list. Because the list is public, he said, board members "may or may not know about that." But, he said, "never is it part of the planning process. We do not consider it as a factor in our deliberations. In the planning process, C.P.F. land is not delayed unduly. We treat it as we treat every other piece of land."

Supervisor McGintee noted that "this board, at the suggestion of local attorneys, has gone to great lengths to streamline the planning process. We continue to do everything to make town government user-friendly."

The lawsuits also cite the town's policies on open-space subdivisions, which require between 25 and 70 percent of the land to be preserved, the adoption of "unprecedented clearing restrictions" that further reduce the "use and value of vacant properties on the C.P.F. list," and "numerous excessive moratoria . . . to secure the town additional time either to coerce the landowners into selling to the town or to punish the landowners by amending the zoning code." Moratoriums on the development of certain lands were in place while the comprehensive plan update was completed.

When a public land purchase is agreed to, the lawsuits state, the town encourages owners to deem it a "bargain sale," claiming that the purchase price is below the market value price, so that they can obtain a charitable donation deduction for the difference in prices, which, according to the court papers, is "improper (if not illegal or fraudulent)."

The Lederer-Plaskett land was zoned for two-acre residential lots, which would have allowed its subdivision into six parcels. Rezoning the site for a minimum lot size of five acres was recommended. The owners had asked the town to rezone it instead for three-acre lots, and filed a four-lot subdivision application. The property was placed in five-acre zoning.

The Iacono property is one of the few subdividable properties left on Long Lane that is not in government ownership or otherwise preserved, according to the lawsuit. The purchase of development rights on the property is recommended in the preservation fund plan.

It was rezoned from two-acre to five-acre residential, making it impossible for the land to be subdivided.

The lawsuits, which were delivered to the town clerk on Tuesday, ask that the rezonings be set aside and seek an award of compensatory damages and attorneys' fees.

Mr. Esseks has also recently filed a lawsuit against East Hampton on behalf of Dick Cavett and Carrie Nye, the owners of two Montauk parcels totaling about 97 acres that was rezoned from five-acre to 10-acre residential. That suit claims that, in adopting the zoning changes, the town failed to follow the proper procedures, under the State Environmental Quality Review Act.

Similar Article 78 lawsuits, seeking to overturn new zoning designations, were filed in June on behalf of the Benson Point Realty Corporation, the Montauk Yacht Club, and the Ross School and its landholding corporations.