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Nov 12, 2018 3:20 PMPublication: The Southampton Press

Concerns Intensify As Southampton ZBA Readies To Make Decision On East Quogue Golf Course

“The Hills at Southampton.”        PRESS FILE
Nov 15, 2018 1:53 PM

As the Southampton Town Zoning Board of Appeals readies to make a decision this week on whether a proposed 18-hole golf course in East Quogue is considered an accessory use to an accompanying 118-unit subdivision, opponents of the project have continued to rally against the proposal, noting that it would set a “frightening precedent” for future developers.

The “precedent” part, at least, appears to be a given: The chairs of both the ZBA and the Planning Board acknowledge that a favorable ruling will change the way the town’s regulatory boards look at future applications.

Project opponents also have raised concerns that the Southampton Town Board is suffering from what they have described as the “intimidation factor”—essentially accusing the Town Board members of abdicating their responsibility to pass legislation clarifying ambiguity in the town code, out of fear of litigation by Arizona-based Discovery Land Company.

Southampton Town Supervisor Jay Schneiderman, who voted in favor of the project when it was before the Town Board last year, has taken the brunt of criticism from project opponents, who accuse him of favoring the project to the extent that he helped squelch an effort by Councilman Tommy John Schiavoni to introduce legislation designed to clarify the town’s position regarding golf courses and water protection.

The ZBA is prepared to render an interpretation of the town zoning code on Thursday, November 15, at 7 p.m. at Southampton Town Hall.

‘Anything, At Any Time’

The question before the seven-member board comes roughly a year after Discovery Land failed to convince the Town Board to approve a planned development district, or PDD, which would have cleared a path for their previous, nearly identical proposal, “The Hills at Southampton.” The developers have since changed their argument, maintaining that special zoning is not needed.

Now, Discovery Land maintains that a golf course used only by residents of the development is comparable to other recreational amenities, such as swimming pools and tennis courts, which are allowed under a little-used portion of the existing town code, via a planned residential district, or PRD.

The ZBA was tasked with interpreting that portion of the zoning code after the Planning Board sought clarification as it reviewed the developer’s pre-application, which was approved, sans the pertinent question.

Currently, there is no set list of every permitted accessory use in the town code, according to ZBA Chairman Adam Grossman.

Last week, Southampton Town Civic Coalition President Andrea Spilka—who was appointed to a seat on the Suffolk County Council on Environmental Quality in May—said that if Discovery Land is allowed to build a golf course as an accessory use, it would set a “frightening precedent.”

“Put a private gun club, a drag strip, a petting zoo, a ski slope to be allowed in a PRD. There are all sorts of things that are possible,” she said. “When the code isn’t specific, the ZBA should lean in favor of whatever is going to be best in the Town of Southampton and the people who live there. Should they say that the golf course is okay, the only benefactor is Discovery Land and the amount of money that they make.”

Project opponent and local environmental attorney Carolyn Zenk of Hampton Bays has repeatedly agreed: “Any homeowner could put a golf course in their backyard” if the ZBA approves the measure, she has said.

“I think we set the precedent where anybody can argue for anything, at any time,” Group for the East End President Bob DeLuca said on Tuesday. “This was a Hail Mary after the developers lost the PDD review. This is a slow-motion train wreck. Once the ZBA decides that this is an accessory use, why not have a shopping mall associated with your subdivision?”

Even Planning Board Chairman Dennis Finnerty admitted on Thursday, November 8, that a precedent would indeed be set should the ZBA rule in favor of the developer.

“If the ZBA determines that a golf course is accessory to a residential subdivision, that does set precedent,” he said. “Of course, every application is looked at on a case-by-case basis.”

Mr. Grossman agreed this week that the ZBA’s decision will undoubtedly be used by future developers.

“No matter what, this decision is going to have an effect on future applications … in terms of large tracts of land that propose accessory uses of any kind,” the ZBA chair said. “I suspect in those situations we will refer to whatever we do with this applicant.”

Precedent On Cow Neck?

Mr. Finnerty noted that golf course layouts with as many as nine holes have already been approved as accessory uses for residential properties within Southampton Town, just not within the town’s 5-acre zone—the most restrictive in the town, in which a single home lot size has to be 5 acres or larger—which is where the developer’s golf course and subdivision are proposed to be built. “The question is a matter of size and scale,” he explained.

Opponents also have noted that the Discovery Land proposal differs in that it is a plan for an 18-hole championship golf course, complete with clubhouse, which suggests it might be able to function as a stand-alone golf course, unlike any of the other similar facilities on private properties in town.

Mr. Finnerty added that the original intent behind the town’s “open space law,” and its use of “clustering” development on subdivisions, is to protect “natural” and “scenic” open space when residential properties are created. It characterizes open space—also referred to as a “common area”—by its “natural scenic beauty, or existing openness, natural condition, or present state of use [and] the conservation of natural or scenic resources.”

However, Wayne Bruyn, an attorney at Southampton-based O’Shea, Marcincuk and Bruyn LLP and who represents Discovery Land, has repeatedly pointed to a nine-hole golf course on the Cow Neck peninsula in North Sea, which, similarly to the East Quogue proposal, was built on a large and environmentally sensitive swath of land in a residential zone.

Louis Bacon, a Wall Street billionaire who also owns Robins Island, is a conservationist who donated an easement on his 540-acre Cow Neck peninsula 15 years ago, giving up most development rights on the North Sea property. But he retained the right to put in several golf holes for his private use, in the midst of the preserved property.

Discovery Land’s property is centered in the Pine Barrens, whereas Cow Neck is made up of tidal and freshwater wetlands, woodlands, agricultural and equestrian lands, uplands and meadows.

Otherwise, the lack of precedent for a golf course resort development, Mr. Bruyn said, is simply a matter of scale. “There’s never been a property large enough with enough units to support it,” he argued on Thursday, November 8. “How many other subdivisions have 600 acres?”

Pointing to Cow Neck, he asked: “One nine-hole course for one house—so what’s wrong with 18 holes for 118 lots?”

The ‘Silent Code’

The Southampton Town Board has considered legislation to clarify what Southampton Town Board member Tommy John Schiavoni has commonly referred to as “silent code”—a portion of the town code left largely to interpretation.

“The PRD really is somewhat silent on what can be done in a development area,” he said. “In the absence of articulated code, the ZBA is being asked to make a determination. To me, that’s not how I believe code should be made in the Town of Southampton.”

Instead, in recent months, he has proposed two pieces of legislation to the Town Board, that, if approved, would have helped clarify any ambiguity in the pre-existing code.

Mr. Schiavoni’s first proposal to limit recreational space in PRDs to 1 acre per 10 dwellings or lots, or 10 acres, whichever is less, was shot down in October, with only Councilman John Bouvier supporting the idea.

Town Board members Christine Scalera and Julie Lofstad—the latter of whom was named individually, along with Mr. Bouvier, in a $100 million lawsuit filed by Discovery Land against the town over the Town Board’s rejection of the developer’s PDD proposal—voted against Mr. Schiavoni’s legislation moving forward, noting that, on advice from counsel, they could not support a public hearing.

This week, Ms. Lofstad declined to comment on anything remotely affiliated with ‘The Hills’ “due to pending litigation.”

Therein lies the “intimidation factor,” opponents said.

“It was shot down not because it wasn’t a good idea—it was shot down because of the lawsuit,” Ms. Spilka said of Mr. Schiavoni’s proposed legislation. “The minute [Discovery Land] lost at the Town Board level, they came back with a lawsuit. They appear vicious in their desire to get this done.”

Mr. DeLuca agreed: “When you have a project of this size, with this much controversy, it’s time for the Town Board to take action. I’m not a ‘sky is falling’ kind of guy, but this is being professed as totally normal—as if you wanted to put a garage or pool in your backyard. Once you get the boulder rolling down the hill, it takes on a life of its own.”

Ambiguity Remains

At the October board meeting, Mr. Schiavoni was charged by several members of the audience, including Mr. Bruyn, with specifically targeting Discovery Land’s pre-application with his proposed legislation.

“It was aimed at our application to kill it,” Mr. Bruyn said last week.

However, Mr. Schiavoni argued that the developer’s proposal merely illuminated a gap in the town code.

“That’s why I did what I did—because the code is silent. That one particular application highlighted the need for code,” he said. “The Town Board is responsible for the code in the town. In absence of code, I feel we are required to pass code, and that’s why I put that forward.”

Following his proposal’s rejection, in July, he filed another resolution to enact a six-month moratorium on development within the town’s aquifer protection overlay districts—environmentally sensitive areas above the deepwater recharge sole-source aquifer where most of the area’s drinking water is derived from—which includes the Pine Barrens and, in turn, Discovery Land’s 591-acre Lewis Road property.

Mr. Schiavoni argued that the moratorium would have allowed the board to review laws, studies and plans that focus on the protective zone, including the town’s master plan and sustainability plan, and to come up with recommendations for new, tighter regulations.

He withdrew his application within a week, saying that he did not believe that it would have had enough support to pass on the Town Board.

Though Mr. Grossman would not offer an opinion of Mr. Schiavoni’s proposals this week, he said that there is no benefit to having ambiguity in the town code.

“We don’t want to have ambiguity in the code—I would want [the Town Board] to make it clear,” he said, adding, however, “It’s hard, under the circumstances, for them to act while this is going on.”

Southampton Town Attorney James Burke agreed. He said last week that while the Town Board is legally permitted to amend the code at any time, he could not speak on the ramifications it might inflict. “They have the ability. Would that be viewed in bad faith or would that open the court to challenge the town? The landowner could always bring action that the Town Board was acting in bad faith.”

New York State Assemblyman Fred W. Thiele Jr., a former Southampton Town supervisor, who has made it clear that he is opposed to the project, said this week that the Town Board, as a legislative body, has the right to clarify any ambiguity in the code.

“It would be ludicrous to argue that a golf course, which is a principal use, is somehow permitted as an accessory use,” he said. “If the Town Board wanted to clarify it with an amendment, they would have the authority to do so.”

He continued: “To me, it’s crystal clear that under the existing code this project isn’t allowed to go forward.”

A Matter Of Intimidation?

While Mr. Bruyn would not confirm whether the developers would pursue legal action should the Town Board entertain amending the code, he did say, “We’re opposed to any legislation that changes the status quo and our interpretation of it. If the Town Board felt that it wasn’t clear, they had decades to change the code.”

However, Dick Amper, the executive director of the Pine Barrens Society, said last week that fear of litigation shouldn’t prevent the Town Board members from doing their job as lawmakers.

“I think there is a major intimidation factor,” he said on Friday. “I can’t think of any reason why anybody wouldn’t want that clarification, unless they themselves were intimidated merely because Discovery Land would prefer that they not do their job.”

Mr. Schiavoni would not comment on what Mr. Amper referred to as the “intimidation factor,” offering only that the Town Board was offered legal advice—which he would not disclose any details of—in executive session following Discovery Land’s lawsuit.

Still, Mr. Amper argued that legislation must be passed in order to protect the East End water supply and aquifer. He pointed to several recent cases of water contamination—mainly including perfluorooctane sulfonate, or PFOS, and perfluorooctanoic acid, or PFOA—spanning from Westhampton to Wainscott.

“This goes way beyond ‘The Hills’—it’s about water quality,” Mr. Amper said. “It has to do with the Town Board’s responsibility to make laws and protect policies. The Town Board cannot simply abdicate its responsibility.

“It would be open season for developers if all they have to do is say, ‘We’ll sue you if you don’t give us what we’re asking for,’” he continued.

Speaking on behalf of the Pine Barrens Society, Mr. Amper, similarly to Mr. Bruyn, would not come out and say if the organization would pursue legal action should the ZBA rule in favor of the developer. “We’re not going to promise to litigate,” he said. “If the ZBA violates the code, then we’ll have to challenge that. How we do it and when really depends on not pre-judging the ZBA.”

Staying Out Of It

Although Mr. Amper has vowed not to pre-judge the ZBA, he has passed judgment on Southampton Town Supervisor Jay Schneiderman.

On Friday, he accused Mr. Schneiderman of turning to outside counsel for advice regarding Discovery Land’s lawsuit as a way to intimidate his fellow board members.

“The supervisor asked for a letter saying, ‘You shouldn’t do anything that The Hills doesn’t want you to do,’” Mr. Amper charged last week. “He likes the project. The Town Board wouldn’t approve it, so now he goes back and says, ‘Leave it alone.’”

To combat those accusations, Mr. Burke explained that when faced with lawsuits seeking significant money damages, or personal injury cases, it’s routine for the Town Board to seek outside counsel from their insurance carrier, Devitt Spellman Barrett, LLP.

Mr. Schneiderman confirmed on Monday that the Town Board is working with the Smithtown-based insurance carrier in association with the PDD lawsuit. However, he noted that he is by no means intimidated from enacting environmental legislation.

He pointed to recent legislation passed by the Town Board, which requires all homes in high-priority areas—residential properties located near water bodies—to install nitrogen-reducing septic systems, with the goal of protecting the aquifer and water quality across Southampton Town. In fact, he said that he would be willing to expand those areas to include Discovery Land’s property, which is currently outside of the required zone.

He added that he would also support legislation that would limit the amount of fertilizer to be used in all recreational playing fields.

“It’s simply not true—I’m not intimidated from passing environmental legislation,” he said.

As for his previous support of the project, and accusations that he’s pushing to get it approved through what many opponents have referred to as a “loophole” in the town code, he stressed that he is staying out of the process entirely.

“It’s very critical to me that whatever they decide is without interference,” Mr. Schneiderman said of the ZBA’s impending interpretation. “Whatever they decide, I’ll support.”

However, he would not offer an opinion as to whether the existing town code, which he said he does not believe to be ambiguous, supports a golf course as a recreational amenity.

“I’m trying to avoid anything that might be construed as any opinion here,” he said. “It’s not in front of me—it’s in front of the zoning board … and because the Town Board is being sued, I have to be careful.”

The ZBA is prepared to make a decision on the controversial question on Thursday at 7 p.m. at Town Hall—although it seems likely that whatever the ruling, a court ultimately will settle the question.

With just a few days to go, Mr. Grossman said, “We can’t please everybody. Someone’s going to be unhappy no matter what we do. We’re going to do our best.”

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Profiles in Courage.
By dfree (818), hampton bays on Nov 13, 18 5:38 PM
Most of the people that are against this project don’t live in East Quogue. East Quogue is in favor of the project. 9 of the 15 members of the Citizens Advisory Committee have voted to send a letter in support of the Golf Course. 118 Homes with a golf Course or 137 with work force housing are the choices here. Neither are the optimal choice but the golf course will increase the value of the property which will pay more of the taxes and most certainly reduce the use of services. Turf management ...more
By davidcHB (11), southampton on Nov 13, 18 7:06 PM
It sure was fun riding dirt bikes there for the last 40 years!
By Non-Political (125), Hampton Bays on Nov 13, 18 7:49 PM
1 member liked this comment
None of that comment is even remotely true. Many people in East Quogue, Quogue, and Hampton Bays don't want this and the aquifer runs under all those towns. When are we going to do the right thing? When the algae is a foot thick on every pond, bay and creek in our neighborhood? How many votes against this do we need? Take your lawyers, high priced lobbyists, and your bought politicians and make your $100 million in upzoning profits to some place else PLEASE.
By dfree (818), hampton bays on Nov 13, 18 7:52 PM
1 member liked this comment
Seems like a story about Mocamonto or the East Quogue golf course every other week, Meanwhile never any updates on the CPI and the Canal town home project ??? you know the one that was supposed to be for the Summer of 2018 according to the posters and press release from over a year ago. Cant your reporters find anything out about what the delay is ?
By 27dan (2854), Shinnecock Hills on Nov 13, 18 8:38 PM
1 member liked this comment
Just what Long Island needs.

Another f*#%*^& golf course.
By Mr. Z (11847), North Sea on Nov 13, 18 8:49 PM
Golf courses are beautiful to look at provided the are maintaining them organicly... they attract quality people and raise property values
By joe hampton (3461), The Hamptons on Nov 13, 18 8:59 PM
There is an abandoned, Southampton Town landfill across the street that is actively contaminating our water and Andrea Spilka, Carolyn Zenk and Dick Amper could care less.
By cmac (184), East Quogue on Nov 14, 18 8:22 AM
3 members liked this comment
Abolish golf now.
By Pacman (273), Southampton on Nov 14, 18 9:54 AM
Discovery Land will make $200 million in profits from an upzoning decision. They will do anything to make that money. When are we going to say "enough" to endless development that destroys our quality of life?
By dfree (818), hampton bays on Nov 14, 18 3:31 PM
1 member liked this comment
There are several significant differences between what Louis Bacon has done at Cow Neck and what Discovery proposes for East Quogue, but the most important one is this: Cow Neck is not in the Pine Barrens. It's not on top of a sensitive aquifer in a specially protected zone of the town. Lewis Rd in East Quogue is all of that, and the developer knows it, despite all his lawyers' disingenuous arguments.

The intimidation factor is real. It's chilling to the people involved, and inhibits ...more
By Turkey Bridge (1979), Quiogue on Nov 14, 18 5:23 PM
The first plan was the best for the community on a whole, with the golf course being lined and treated to prevent contamination of the aquifer then throw in part time homes with sewage treatment plus the support to the taxbase, was a can't lose proposal.
By 11953guest (48), southampton on Nov 14, 18 5:29 PM
2 members liked this comment
You all fought like hell to keep McDonald's out of here as well and now half of you are on the line three times a week
By Ditch Bum (929), Water Mill on Nov 14, 18 9:46 PM
1 member liked this comment
An Olive Garden or IHOP would be nice. /s :-)
By Pacman (273), Southampton on Nov 17, 18 9:58 PM
Congratulations to the ZBA for making a decision based on scientific and legal facts rather than the alarmist emotional rhetoric utilized by the Nimbys, Bananas and out of town hustlers like Amper.
By VOS (1241), WHB on Nov 16, 18 3:07 AM