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Jan 8, 2019 5:00 PMPublication: The Southampton Press

Group For The East End President Calls On Town Board To Hold Work Session To Revise ZBA Policy

The Southampton Town ZBA.  PRESS FILE
Jan 12, 2019 7:28 AM

Environmentalists who filed a lawsuit against the Southampton Town Zoning Board of Appeals last month, seeking to overturn a decision allowing an 18-hole golf course to be included in an application for a residential development in East Quogue, are now calling upon the Town Board to review how the ZBA makes its decisions, and to possibly insist on a change in how the board deliberates.

According to Group for the East End President Bob DeLuca, the ZBA’s lack of deliberation in making decisions—the board members typically do not discuss applications, either privately or in public, and depend on an assistant town attorney to poll members and then draft a written decision for a public vote—is in violation of the state’s Open Meetings Law. He has called on the Town Board to hold a work session to discuss revising the ZBA’s current decision-making process.

The Open Meetings Law, which is commonly referred to as the Sunshine Law, requires all “deliberation” by a quorum of members—every substantive discussion that leads to a vote, not just the vote itself—to take place in public.

In a letter dated December 21, Robert Freeman, executive director for the State Committee on Open Government, wrote that, in his opinion, the Southampton Town ZBA is not in full compliance with the law. In the letter, Mr. Freeman pointed to a comment made by ZBA Chairman Adam Grossman in a previous interview with The Press, during which he said that the ZBA was not bound by the same standards as the Town Board and was not required to have public discussion.

“I disagree with the views that he expressed,” Mr. Freeman wrote. In fact, he noted that the Open Meetings Law was amended in 1983 to specifically require zoning boards of appeal to follow the law. Previously, regulatory boards could argue that its proceedings were classified as quasi-judicial, which can be conducted in private.

“Zoning boards are required to conduct their meetings pursuant to the same requirements as other public bodies subject to the Open Meetings Law, such as town boards,” Mr. Freeman wrote.

However, as is its custom, the Southampton Town ZBA holds only votes in public. Rather than deliberate publicly, each ZBA member is sent a private email from Assistant Town Attorney Kathryn Garvin, asking if they are in favor of or opposed to a proposal before the board. Board members respond with a simple “yes” or “no” and a written decision is drafted.

According to Mr. Grossman, Ms. Garvin is solely responsible for determining what information is presented in that document.

Mr. Grossman has been advised by both Ms. Garvin and Town Attorney James Burke that the current process complies with the Open Meetings Law. In an interview last week, Mr. Burke stood behind the current process, explaining that there are currently no plans to change the board’s internal operations.

“I do believe zoning boards are quasi-judicial,” he said. “You try to be as open as possible, but the process that I’ve seen so far has been fully compliant with the Open Meetings Law.”

However, that process, according to Mr. DeLuca, puts far too much power in the hands of the town attorney and deprives the public of their right to understand the rationale behind a decision.

“Anyone who is a ZBA attorney could not only write but do whatever they felt was best and persuade board members one way or another,” he argued. “Is that the amount of power that anyone wished to put in the hands of one attorney, or is that the power that was meant to be placed in the hands of the members of the ZBA?

“I don’t think Freeman could have been any more clear,” he continued, citing his written opinion in December. “It’s not anything more cumbersome than pulling back the curtain.”

The members of the Town Board, however, are divided on whether a work session is necessary to discuss revising the current ZBA policy.

Southampton Town Supervisor Jay Schneiderman and Councilman Tommy John Schiavoni are on the same page. Although both declined to offer their opinion as to whether the ZBA’s policy is in compliance with the Open Meetings Law, they each said that the issue does not rise to the degree to require discussion at a work session.

“I have no reason to believe at this point that they’re not in compliance,” Mr. Schneiderman said. However, he explained that he was willing to review the regulatory board’s procedures: “If adjustments need to be made, we’ll make adjustments.”

In a separate interview, Mr. Schiavoni said, “I think a work session is a little much.”

However, board members Julie Lofstad and Christine Scalera said this week that they would support a work session on the issue.

“It’s certainly worth a discussion,” Ms. Scalera said on Tuesday. “If there’s room to improve, I would want to do that in any way we have to.”

Councilman John Bouvier said that he felt it was “a little premature” to hold a work session prior to the court’s determination in relation to the Article 78 lawsuit—which includes the allegations of Open Meetings Law violations. “We just have to wait to hear what a court has to say,” he said.

In the meantime, Mr. Bouvier did offer an opinion on the importance of open government. “I personally like transparent government—I like the in-person deliberation,” he said. “The public ought to see how their elected officials are doing business and get a sense of where an elected official stands.”

No one, including the Town Board members, Mr. Grossman or Mr. Burke, could provide insight as to who initiated the ZBA’s current policy.

“Which is kind of amazing—where you can just keep doing what the next guy does,” Mr. DeLuca said. “It would be a little surprising if the Town Board elected to do nothing here.”

He speculated that the board members may not want to weigh in because of ongoing litigation brought by the developers of the East Quogue housing project. “Do we have to endure another ‘on advice of counsel’ moment, where the Town Board agrees not to change a clearly unlawful decision-making practice because it might ruffle Discovery Land’s feathers?” he asked.

Discovery Land, the Arizona-based developer behind the East Quogue golf proposal, filed a $100 million lawsuit against the Town Board last year after its members voted down the developer’s previous, nearly identical proposal known as The Hills at Southampton.

Prior to the ZBA’s decision to approve the golf course, project opponents had repeatedly encouraged the Town Board to revise any ambiguity in the town zoning code, which currently does not specifically identity nor does it exclude golf courses as accessory uses. After failing to do so, Mr. DeLuca and his counterpart, Dick Amper, executive director of the Long Island Pine Barrens Society, argued that the Town Board members were intimidated from doing their job out of fear of litigation.

Mr. Schneiderman and Ms. Scalera noted that the existing lawsuit, as well as threats of an additional lawsuit, would not in any way play into the Town Board’s decision to hold a work session or revise ZBA policy, if necessary.

“Honestly, I think it’s absurd,” Ms. Scalera said. “To say we’re not acting because we’re afraid of litigation is mischaracterizing. There’s a difference between being afraid, which is not how I operate, and a fiduciary responsibility to not act recklessly when it comes to taxpayer dollars.”

As for the lawsuit against the ZBA, Mr. DeLuca said all parties have been served, and added that all opposing arguments are due back in court on January 30.

“They’re now on notice from the commissioner that reviews the Open Meetings Law that the process that they are doing does not seem to be lawful,” Mr. DeLuca said of both the elected and appointed board members. “If I was a Town Board member, I might want to do something about that.”

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... it's kind of like having your mother do your homework.
By William Rodney (561), southampton on Jan 11, 19 9:51 AM
1 member liked this comment
speaking of developments--has anyone driven by the monstrosities that Qeen Thron-Holst and her jesters okayed for Sandy Hollow Rd??--the buildings the People were told would fit so nicely into our neighborhood--the buildings that would sit far back from the road--with plenty of room for beautiful landscaping to block them--all fantasies fed to the public at public hearings--at no time did the members of the town board take into consideration the voice of the people--and, apparently, follow thru ...more
By schamus13 (8), southampton on Jan 11, 19 2:54 PM
holy run-on sentence Batman!
By johnj (1024), Westhampton on Jan 11, 19 3:29 PM
The Group for the South Fork is going to do anything through the media to condemn this, including attacking the ZBA for its practices...That's what they do, create more turmoil - Give it a rest
Jan 11, 19 3:51 PM appended by Jac-man
By Jac-man (22), Southampton on Jan 11, 19 3:51 PM
The environmentalists blocking this project are one of our last lines of defense and represent the people far better than our Supervisor and his Zoning Board echo chamber, sell outs all of them.
Why did the Democrats freak when Fred Havemeyer tried to challenge Supervisor Schneiderman? Because Fred would have won that primary and the general election as well. The Democratioc Party in Southampton is now as corrupt as the State Democrats. Time for a change.
"“Why am I doing this? ...more
By dfree (818), hampton bays on Jan 11, 19 4:07 PM
Change the rules when you dont like the score
By chief1 (2800), southampton on Jan 12, 19 9:59 AM
It's much easier to cheat when no one sees what you're doing.
By dfree (818), hampton bays on Jan 12, 19 12:22 PM
100 houses on 600 acres seems fair
By chief1 (2800), southampton on Jan 12, 19 6:17 PM
Your one vote is duly noted.
By dfree (818), hampton bays on Jan 12, 19 7:59 PM
The Southampton Press should write an in depth three part series like its recycling series on the ZBA.
By TheTurtle (143), Southampton on Jan 13, 19 12:58 AM
1 member liked this comment
The Southampton Press should also write an in depth three part series on how Vladimir Putin is secretly working on behalf of Russia.
By themarlinspike (542), southampton on Jan 13, 19 8:16 AM
Seems pretty simple to me. The ZBA’s meeting procedure directly violates the New York State Sunshine Law. Therefore, the decision being challenged in this lawsuit, i.e., the decision reached by that unlawful procedure, is null and void. End of story.
By Turkey Bridge (1979), Quiogue on Jan 13, 19 10:29 AM
1 member liked this comment
Pardon me, I went a little off topic in my above comment. This piece is not about the lawsuit challenging the ZBA’s recent decision on the Lewis Road PRD as violating the Sunshine Law among other things. That’s what I wrote about, but the article concerns the related but separate subject of what the Town Board needs to do about this violation that’s structurally embedded in the ZBA’s regular practice.

Again, it seems pretty simple. With or without a work session, ...more
By Turkey Bridge (1979), Quiogue on Jan 13, 19 4:49 PM
Bunch of babies. Don’t get your way and you change laws. People can we please drain this pathetic swamp in town hall. This is one of the most embarrassing town boards I have ever seen.
By watchoutnow968 (56), Southampton on Jan 14, 19 11:39 AM
1 member liked this comment
It's the Zoning Board that is ignoring an existing law requiring the open meetings and transparency needed to prevent the Town of Southampton from slipping back into the time when bags of cash were transferred for zoning variances.
By dfree (818), hampton bays on Jan 14, 19 8:30 PM
1 member liked this comment
Where are all the Mueller lovers now???? Cat got your tongue?
By Taz (725), East Quogue on Jan 19, 19 9:54 AM
This seems off-topic. Come join us in the comment section of the article about the federal government. That's where the Mueller fans are!
By Fore1gnBornHBgrown (8265), HAMPTON BAYS on Jan 19, 19 10:38 AM
Which article? The links are not on my 27east page any more.
By Taz (725), East Quogue on Jan 19, 19 10:50 AM
The "Congressman Lee Zeldin Prepares For Third Term In U.S. House" one.

You commented on it two days ago and should be able to find it in your comment history.
By Fore1gnBornHBgrown (8265), HAMPTON BAYS on Jan 19, 19 10:56 AM