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Duryea's in a Tussle Over Dock

Thu, 07/29/2021 - 09:03
At Duryea's in Montauk, a plan to enter into an agreement with a boat share company and to bring the existing dock (photographed last year) into compliance with the Americans With Disabilities Act is opposed by East Hampton Town.
Doug Kuntz

The long-running dispute between East Hampton Town and the owner of Duryea's Lobster Deck on Fort Pond Bay in Montauk continues during the prolonged suspension of a January 2019 settlement between the parties, with the most recent focus an effort to expand a dock and a contract with a boat share company.

Through his legal representatives, Marc Rowan, who bought Duryea's in 2014, notified the town and New York State Supreme Court in April of his intention to enter into an agreement with a boat share company to use an existing dock at the site. Later that month, Mr. Rowan's counsel notified the town that he intended to expand the dock to bring it into compliance with the Americans With Disabilities Act of 1990.

Through its outside counsel, the town recorded its objection to Duryea's intention to contract with a boat share company and the latter's use of the dock. That, Leo Dorfman said in a July 21 filing with the court, would constitute a change of use in violation of the May 2019 court order ordering the business to operate in the same manner in which it had been operated over the previous two years. (That order referred to Duryea's food service operation, another point of contention between it and the town.)

The town further objected to a boat share enterprise, Mr. Dorfman wrote, "on the ground that it does not appear to be a currently permitted use on the property" under the town code. Rather, such use "would likely be considered a recreational marina," a change of use "which has not existed historically on the property" and for which the business does not have approval. It would also "likely increase the parking and sanitary flow requirements for the property."

In a June 18 affirmation in support of his client's plan, James Catterson called Mr. Dorfman's arguments "wholly pretextual and baseless." The town's counsel characterizes the expansion as adding "a series of ramps and a floating dock almost 80 feet in length," Mr. Catterson wrote, which would add "substantially more than is necessary to accomplish A.D.A. compliance." In fact, he wrote, "the proposed modification to the dock is exactly what is required to make the dock A.D.A. compliant, no more and no less."

He referred to an April 27 letter from Mr. Dorfman to the court that used the phrase "appears to be an expansion of the existing dock under the pretense of A.D.A. compliance," saying, "The use of the phrase 'appears to be' demonstrates that this claim is utterly baseless and introduced solely for the purpose of continuing to harass" his client, he wrote.

Further, he wrote, his client had submitted a site plan application to the town in 2015, and in a review, Tom Talmage, then the town engineer, noted that the A.D.A. "requires handicapped-accessible boat slips" and provided information on accessibility design. Mr. Rowan obtained pertinent permits from the State Department of Environmental Conservation and the federal Army Corps of Engineers in March 2019.

Moreover, Mr. Catterson wrote, an 1897 court decision stated that the land under Fort Pond Bay is outside the town's boundaries and therefore not under its jurisdiction.

Neither Mr. Catterson nor Mr. Dorfman responded to voice or email messages seeking comment. Michael Walsh, an attorney representing Mr. Rowan, said on Tuesday that the modification to the dock would be permitted and implemented.

The tussle over the dock is the latest in the yearslong and controversial relationship between the town and Duryea's, which Perry Duryea Sr. bought into with a partner, Capt. E.B. Tuthill, around 90 years ago. Mr. Rowan, the billionaire co-founder of Apollo Global Management, bought the Tuthill Road property in 2014. The sale added to a growing trend of Montauk's mom-and-pop businesses changing hands as investors flooded the hamlet with money over the last decade-plus.

Frustrated by what he described as the slow pace of the town's review of changes he sought to make on the property, Mr. Rowan initiated multiple lawsuits against the town in 2018. A settlement announced in February 2019 would have resolved the lawsuits, allowing Mr. Rowan to apply to the town's planning board for restaurant use, legalizing table service where it was technically disallowed, and allowing him to install an innovative alternative septic system on the landward side of Tuthill Road.

The town was to deliver a certificate of occupancy for structures pertaining to the complex's ice manufacture, sale, and storage facility; fish processing, preparation, and cleaning; fish market; wholesale and retail seafood shop; an accessory dining patio; a cottage and garage, and outdoor decks, as well as a house and attached garage that was once the Duryea family's residence.

Under terms of the settlement, Mr. Rowan also agreed that no portion of the property would permit the landing of cruise ships or ferry services.

But the town board never voted on the settlement. Rather, Michael Sendlenski, then the town attorney, signed it twice, along with Mr. Rowan and an attorney representing him.

When the settlement came to light and residents began voicing objections amid accusations by a then-candidate for supervisor of a "back-room deal," the town board voted to hire outside counsel to advise the town on litigation involving Sunrise-Tuthill properties, corporations affiliated with Mr. Rowan. The outside counsel advised that the settlement should be vacated because the board had not passed a resolution authorizing it.

In April 2019, a State Supreme Court judge issued a temporary restraining order suspending the settlement's implementation. Mr. Sendlenski resigned soon after. Mr. Rowan's multiple lawsuits against the town remain unresolved.

"Hopefully," Mr. Walsh said on Tuesday, "there will be a resolution acceptable to all parties at some point."


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