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Nov 14, 2018 10:03 AMPublication: The Southampton Press

New York Supreme Court Decision Overturns Southampton Village ARB Approval Of Gin Lane Compound

The combined properties of 24-28 Gin Lane in Southampton. PRESS FILE.
Nov 14, 2018 10:22 AM

A State Supreme Court justice tossed out a late 2017 decision by the Southampton Village Architectural Review and Historic Preservation Board approving a house of nearly 15,000 square feet on Gin Lane, saying the board had maintained that it could not turn down a proposal based solely on its size—but it can.

In a decision handed down on October 30, Justice Joseph C. Pastoressa determined that the board “did not apply the correct standard” in approving a certificate of appropriateness in October 2017 for a 14,561-square-foot home at 28 Gin Lane, with a 5,055-square-foot guest house on the attached property at 24 Gin Lane. Both properties are owned by international investor Scott Shleifer and are in the village’s historic district.

Board members at the time said they were precluded from considering the size of the proposed compound when making their decision, since it was within zoning restrictions—a point Justice Pastoressa disputed.

The ARB’s opinion was based on a decision made in a 2007 case, Ferrara v. Board of Architectural Review, where the court annulled the board’s denial of an application based on its size, following community complaints.

Justice Pastoressa, however, determined that the Ferrara case “is not so broad” and proved only that the board cannot reject an application because of its size alone. It also did not involve a property located in a historic district.

He said the board’s decision on an application should give consideration to the village’s historic preservation code, as well as its zoning code, and may consider “scale” as well as simply its size, and its appropriateness for a historic district.

“Thus, there is no conflict as the historic district constitutes an additional regulatory requirement beyond the zoning laws that is applicable to all property owners within the district,” the decision reads. “… The board may consider the size or scale of the proposed dwelling as it relates to the property itself, surrounding properties and the neighborhood, and may reject an application if it finds that the scale of the construction is not compatible with the property or neighborhood.”

Justice Pastoressa noted that the two dissenting board members in the 3-2 vote noted concerns about the size and scale of the project, and the majority seemed to rely on an “error of law” in concluding that the ARB could not make a determination on that basis. So he threw out the decision and sent it back to the ARB for reconsideration.

The 3-2 vote approving the project came after months of public hearings and deliberation, including concerns voiced by neighbors of the property. The neighbors—Lynn Manger, as trustee of the William H. Manger Trust, Top O’Dune LLC, and Pamela Michaelcheck—filed an Article 78 lawsuit in December 2017 seeking to overturn the board’s decision.

Ms. Manger said in an email on Monday that she and Ms. Michaelcheck were concerned about the proposed house’s size and its compatibility with the other houses in the historic neighborhood.

“Our intent was to have the decision annulled, because we were not allowed to discuss size and compatibility and felt both these concerns were key in the historic district,” Ms. Lynn said.

The neighbors were represented by attorneys Jeff Bragman of East Hampton, who is also a member of the East Hampton Town Board, and Richard Handler of Amityville.

Mr. Handler said on Tuesday that the board made its decision under a “mistaken view” of local law, and added that this error was not uncommon.

“These local boards are men and women acting in good faith in the best interest of their community,” Mr. Handler said. “Unfortunately, in a board’s good-faith review, mistakes are made—and that’s why this proceeding exists.”

Mr. Shleifer’s attorney, John Bennett of Southampton, said on Tuesday that he and his client were “digesting the decision” and “formulating” what to do next.

Mr. Handler said it would be up to Mr. Shleifer to decide whether to approach the board with the same project or submit a new plan for approval. He noted that construction has not begun on the house, since two of the three plaintiffs in the lawsuit obtained a preliminary injunction in mid-May halting work at the site.

Regardless, he and his co-counsel expressed relief in the court’s decision.

“None of our clients were ever claiming the board did anything wrong,” Mr. Handler said. “The objection was based on the criteria the board used to make its determination.”

“This is a very important decision for all municipalities, because this has never been enunciated so clearly,” Mr. Bragman said. “Our clients feel very satisfied and think we’re on the right track. We’re grateful for the decision.”

Board Chairwoman Susan Stevenson said ethics laws prevented her and other board members from commenting on the decision.

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Is there a less confidence-inspiring public body anywhere than the Southampton Village ARB? Seems like their toughest decisions are frequently drawn-out, convoluted and controversial affairs, and even then...they whiff in understanding the law to be applied? I know they’ve changed leadership, but seems like a greater overhaul may be in order? So much authority getting bungled far too often, in my view
By CPalmer (122), Southampton on Nov 14, 18 2:20 PM
1 member liked this comment
Southampton School District BOE? SVPD? They fit quite nicely in your precise description.
By deepchanel (89), Hampton Bays on Nov 15, 18 8:16 AM
The ARB is going to spin the wheel of responses and will respond accordingly with whatever the pin lands on.
By SlimeAlive (1181), Southampton on Nov 14, 18 2:21 PM
A wise ruling...ohm...
By V.Tomanoku (790), southampton on Nov 15, 18 12:37 AM
A stupid decision by another elected clueless judge. Go appeal this and it will be reversed. There is a law that gives the max sq footage. No where does it say the zoning code is discretionary. By the way the original historic Woolworths family mansion was three times the size. Michael Irving and his puppet Kimberly Allan are destroying the village. Stores closing up, restaurants vanishing, and real estate sales cut in half Be proud great job
By chief1 (2800), southampton on Nov 15, 18 12:13 PM
1 member liked this comment
I’m not so sure the issue is with the board per se. I’m thinking that the judge may be at fault. The last time the Village ARB deemed a project too large, because of neighbors objections, that was overturned. Now they base their decision on architectural merit not size and it gets overturned. The project will go back to the board and, under Susan’s great leadership, it will get shot down based on size alone. Then back to the courts and that will get overturned...

Didn’t ...more
By Draggerman (955), Southampton on Nov 18, 18 8:45 AM