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Dec 18, 2013 9:39 AMPublication: The Southampton Press

Owners Of Concer House File $10 Milion Notice Of Claim Against Southampton Village

Dec 18, 2013 9:39 AM

The owners of the house believed to have been owned by Pyrrhus Concer filed a notice of claim, a precursor to a lawsuit, against Southampton Village on Monday, seeking $10 million in damages.

On Monday afternoon, attorney David Gilmartin filed the notice with the village and said his clients, David and Silvia Hermer, are seeking actual and punitive damages from the Village Board of Historic Preservation and Architectural Review. According to Mr. Gilmartin, the damages include the loss of property value, the loss of investment and violating his clients’ constitutional rights.

With the notice of claim filed, Mr. Gilmartin must wait 30 days before filing the lawsuit in New York State Court.

“Let there be no doubt,” he said. “The village has harmed my clients financially, and it is my intent to return the favor in multiple.”

The filing comes less than a week after the ARB denied a request for a certificate of appropriateness to demolish the house to make way for a two-story single-family home on the property at 51 Pond Lane. The ARB voted 3-1 against the proposal to demolish the house, with Christina Redding opposing. Board member Esther Paster was not present at the vote.

Since the hearing opened to the public in September, there had been a heated debate between the owners, through Mr. Gilmartin of the Water Mill law firm Farrell Fritz, and those who oppose the demolition, who maintained that the house is an integral part of African-American history on the East End.

Mr. Concer was born a slave in 1814. He was freed and went on several whaling expeditions. During one of them, on a boat captained by Mercator Cooper, he became one of the first Americans—and the first African-American—to dock in Japan. The whaling boat he was on rescued Japanese sailors in distress, going on to dock in Tokyo. Upon returning to Southampton, Mr. Concer launched a ferry service on Lake Agawam.

Opponents of the proposal say the property would not be in jeopardy if it had been included in past historical references—but they noted that information related to African-American history, particularly where property ownership and residency are concerned, were often left out of such records.

The date of the house’s construction is unknown; it has architecture consistent with the early 1900s, but it is unclear whether the structure dates to the time when Concer might have lived in it, in part because records related to African-American-owned homes are incomplete.

According to Mr. Gilmartin, the decision by the ARB goes against the purpose of the board and violates the constitutional rights of his clients, who were given no indication that demolition would be a problem when they purchased the house earlier this year. He went on to say he has never had a case where a board “tortured the interpretation” of its own code so much.

“In many ways, it is a surprise, because it is an outrageous decision,” Mr. Gilmartin said. “The board clearly bowed to public pressure and ignored the plain meaning of their own statute.”

Last week, Mr. Gilmartin said the lawsuit will focus on the idea that the village is placing the burden of preserving the house on the owners, which he said violates the Fifth Amendment.

“Let the village be forewarned: The Fifth Amendment prevents the government from forcing private homeowners, like my client, from bearing public burden,” he said. “That will be a huge part of this lawsuit.”

This week, Southampton Village Mayor Mark Epley said he was not surprised that a notice of claim had been filed. As of Tuesday afternoon, Mr. Epley said the village had not had a chance to review the notice with legal counsel, but that he hoped the village and the property owners could reach an agreement.

“It is a no-win situation here,” he said. “I am hoping we can come to some kind of resolution, but we are going to wait to get feedback from our lawyers.”

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Get ready for the lawsuits. The vilage of Southampton basically took the property and now will cost taxpayers plenty. None of the people protesting even knew who Mr Concer was until Sally Spanburgh brought the subject up. The house is no way from the 19 th century by the fact the building materials are from the twentieth century. The facts are the facts and can't possibly show this house ever was constructed in 1860. I guess when protesters throw out the race card the village crumbles.
By chief1 (2800), southampton on Dec 12, 13 9:27 AM
Come on Press - gives us more information. This is happening literally in your back yard. What was the rational for denying it? The below exceprt tells me that they have no REAL bona fide reason for denying it. Apparently Gilmartin is taking this to court and I'd be hard press to imagine he would lose unless the Village has some information that hasn't been reported:

T"he date of the house’s construction is unknown; it has architecture consistent with the early 1900s, but it is ...more
By Nature (2966), Hampton Bays on Dec 12, 13 9:36 AM
There is a very nice village owned piece of property right a across from the Mecator Cooper House that this house would sit nicely on. A fitting place to memorialize one of Southampton's most historical figures.

Oh and cheif1 my grandfather did all the correspondence with the Japanese about Pyrrus Concer over 30 years ago, before the Village put up there plaque at Agawam Park. As an elder at the 1st Presbyterian Church he wondered who was this man who left a Legacy Scholarship at the ...more
By Lester Ware (15), Sag Harbor on Dec 12, 13 10:10 AM
5 members liked this comment
Your absolutely right that house should be moved to that site where everyone can actually see it. Pyrrus Concer was a man who was a slave and prospered after slavery. Not only did he get a job he traveled the world, became a pillar of society, and had his own business. He should be in the village as a reminder to people who say they can't start a business or get a job that anything is possible if you put your mind to it. This is a man with the deck totally stacked against him who had no excuses, ...more
By chief1 (2800), southampton on Dec 13, 13 4:28 PM
1 member liked this comment
Simple solution. Let those who want the museum repay the owners for the property and preserve it. No town or village money should be used.
By hamptonsnrcit (47), sag harbor on Dec 12, 13 10:53 AM
1 member liked this comment
This is an embarrassment for the town of Southampton. Not only did the owners attain a signed document from the arb's own town historian recommending that the house be demolished at purchase time but there is no evidence that this person lived in this specific house any more than in any of the surrounding houses. Even if he did, this house was bought without belonging to any historical or architectural lists and the existing house was built in the 1900s. The board was bullied into this decision. ...more
By Broo100 (11), Southampton on Dec 12, 13 11:28 AM
1 member liked this comment
**Village of Southampton. Not Town
By Nature (2966), Hampton Bays on Dec 12, 13 11:37 AM
> "This is an embarrassment for the town of Southampton."

Why? Isn't it a Southampton Village matter?
By Frank Wheeler (1826), Northampton on Dec 12, 13 11:37 AM
How is that responsive to my question?
By Frank Wheeler (1826), Northampton on Dec 12, 13 7:39 PM
The two posted at exactly the same time.
By PBR (4956), Southampton on Dec 13, 13 11:44 AM
Take it easy on Frank. He is only #8 on the most postings list for The Press but, unlike many of those ahead of him on the list, he usually makes sense.
By Doug Penny (64), Lexington, Virginia on Dec 16, 13 5:29 PM
1 member liked this comment
Yes. They are supposed to follow the guidelines not to be pressured by the loudest speaker. This results in real economic damages for the buyers. After the lawsuit the damages will be felt by Southampton tax payers instead just because the board members were to intimidated to do the right thing. Specially pathetic of Mr. Curtis. They should resign
By Broo100 (11), Southampton on Dec 12, 13 11:51 AM
Unbelievable. Shame on the ARB!
By lursagirl (245), southampton on Dec 12, 13 3:24 PM
Classic case of kicking the can down the road. ARB knew the decision was incorrect, just lacked the spine to make a decision that may upset the emotional band of fools. Something wrong with the system when the legal system is needed to make decisions because of cowardice among the Board members. Just expensive for the tax payers, but the Board can sleep at night knowing they did not have to make a decision that might damage their oh so perfect images. What a joke.
By nojustice (1), southampton on Dec 12, 13 4:23 PM
i guess the village of southampton has officially become a banana republic where property rights are at the discretion of the clowns that run the board. i feel awful for the owners of this property and for us taxpayers.
By louiserose (1), southampton on Dec 12, 13 4:36 PM
1 member liked this comment
I beg to differ. The buyers and their broker had to have been aware that the house was of historic significance, and therefore not to be demolished lightly. Not only is there a related monument across the street from it, but even with its additions it looks as if it is from a much earlier period than the 1900's. Pictures of its interior on Zillow show it to have the type of old wideboard floors indicative of a house of the early to mid 1800's. Too much of Southampton's past has been allowed to be ...more
By oystercatcher (126), southampton on Dec 12, 13 11:45 PM
3 members liked this comment
The pictures from Zillow may be from the other house on the property IMO.
By PBR (4956), Southampton on Dec 13, 13 7:21 AM
That's what's crazy. The house was under no historical or architectural listings whatsoever. Not landmarks and the owners did their due diligence by obtaining a certificate for the ARB historian recommending it be demolished. Furthermore, the ARB has no jurisdiction whatsoever for the inside of the house so whatever is inside should not weigh at all. Finally, the Concer plaque in the park links him to the lake and ferry but absolutely not to 51 pond lane. The ARB has made a poor and overreaching ...more
By Broo100 (11), Southampton on Dec 13, 13 8:38 AM
1 member liked this comment
Maybe you should stop by the Concer monument in Agawam Park and read the plaque?
By ocean27 (21), Southampton on Dec 13, 13 5:37 PM
The report given to the ARB was cursory at best, however, it did mention the presence wide board floors in several rooms. Village leadership over the years are to blame for this situation, for their lack of leadership. When the monument was put in the park, with an anchor taken from a building on the Concer property, it should have made sure the house itself was identified in its inventory of historically important structures.
By oystercatcher (126), southampton on Dec 14, 13 12:05 PM
1 member liked this comment
Maybe. But they didn't. And now they cannot take the value away from the owners at will. It is not legal. The ARB cannot make ANY determinations based on the inside of the house. No one can. Even if the boards dated to the 1800 it cannot be proven that Concer lived here. And even if there was irrefutable evidence that he had lived there (which again there is NOT) it does not matter. The ARB cannot hold the owners to shoulder the economic impact by changing the rules for a possible oversight on their ...more
By Broo100 (11), Southampton on Dec 14, 13 5:38 PM
There is so much more to this issue. For the record the PCAC was sympathetic to the owners and sincerely tried and made every effort to work this out, in the preliminary negotiations we agreed that it would be a waste of the owners and the Village taxpayers money to have this issue go to court and it would be better spent moving and restoring the historical portion of Mr. Concer's homestead, BUT in the midst of negotiations for whatever reason ,out of the clear blue, changed his mind. There were ...more
By MsB (17), Southampton on Dec 16, 13 12:16 AM
3 members liked this comment
The owners offered very single possible solution from incorporating elements of the old house to moving any old materials wherever anyone would want them. They opened their door to the house as a courtesy and sing of good will which they were not required to do. The other side was unwilling to negotiate anything.
By Broo100 (11), Southampton on Dec 16, 13 4:27 PM
This comment has been removed because it is a duplicate, off-topic or contains inappropriate content.
By MsB (17), Southampton on Dec 16, 13 12:26 AM
Ok so now we all know Concer owned this land. That fact remains there is no money to buy it, and the village can't take it. The real question is what exactly does the ARB atty who sat through these meetings really do. Did he advise them this vote has consequences? Did the board ignore his advice. This board has done a great job of fixing Southampton Village up, but this issue is more then they signed up for.
By chief1 (2800), southampton on Dec 16, 13 8:57 AM
1 member liked this comment
What kinds of damages are the courts awarding these days for "abuse of discretion" by local boards like the ARB?
By PBR (4956), Southampton on Dec 16, 13 10:05 AM
um... No. There is no definite evidence that he lived there. The same documents could point to him having lived in 37 Pond lane or any other surrounding property. The board DID ignore the village attorney's advice.
By Broo100 (11), Southampton on Dec 16, 13 4:23 PM
Article updated to include notice of claim and punitive damages.

There goes the budget for the Coopers Beach catering facility and pavilion, the Parrish grounds sail/gazebo/whatever . . .

It will be interesting to see whether the court lawsuit will include the ARB members AS INDIVIDUALS for exceeding their authority as board members
By PBR (4956), Southampton on Dec 16, 13 5:00 PM
1 member liked this comment
Any board member should be covered under the village's corporate insurance / indemnification.
By zaz (197), East Hampton on Dec 17, 13 5:20 PM
For punitive damages for actions outside the scope of their authority as members of the board?
By PBR (4956), Southampton on Dec 17, 13 5:24 PM
Show me a board member from any municipality who has been held personally liable (financially) for a joint decision a board has made. The decision they made is NOT outside the "scope of their authority". They have every right to make the decision they did, the problem is the decision isn't based on any reasonable amount of facts, so the ruling will likely be overturned. If the Village Town Board passed a resolution stating the house could not be demolished, THAT would be outside of their authority. ...more
By Nature (2966), Hampton Bays on Dec 18, 13 9:26 AM
The applicants position is that they have in fact been (and continue be) "harmed" by the ARB. So even if (when) the decision is overturned, the Village could still be liable for damages.
By zaz (197), East Hampton on Dec 18, 13 12:03 PM
Correct - but those damages do not come anywhere near $10,000,000. That figure is based on the purchase price and potential realized gains from the property and being able to demolish the house and construct what they want.

$10 says that once they get the decision reversed the will stop pursuing any $$
By Nature (2966), Hampton Bays on Dec 18, 13 12:13 PM
They will want to get paid to cover all of their legal expenses as well as lost opportunity costs. And if there are no punitive damages then theoretically no one (ARB) has learned a lesson. Based on the atty's tone I suspect he/they will seek damages.
By zaz (197), East Hampton on Dec 18, 13 2:47 PM
plus lawyer costs, plus mortgage costs, plus carrying costs... It adds up. I think that there should be an in depth investigation of this voting. The town attorney adviced them and they disregarded his advice due to their 'white" guilt. There was a lot of reverse racism going on in this case. People challenged the town historian because as "a white man he could not possibly be sensitive to black history" (can you imagine the outrage if the reverse claim had been made???). I would not be surprised ...more
By Broo100 (11), Southampton on Dec 18, 13 2:53 PM
Nature, you may be right, but Never Say Never was the main point.

If a court finds that there is no rational basis (in the record) for the ARB decision (which you seem to admit, more or less), then it could very well impose punitive damages and/or attorney's fees on the individual personal board members, in my personal opinion.

Betcha some of the board members have asked for advice on this already . . .
By PBR (4956), Southampton on Dec 18, 13 4:43 PM
PS -- This took place in the Village of Southampton (which is within but legally separate from the Town of Southampton).
By PBR (4956), Southampton on Dec 18, 13 4:46 PM
PBR - you are making the facts fit your argument. Your original statement was that they could be personally liable if the decision was outside of their purview. Now you're trying to say they could be personally liable if there is "no rational basis". Those are two totally different things.

No rational basis is the same as "arbitrary and capricious" which is a very common finding by judges in the cases of government boards. I have little doubt that a judge won't find this to be arbitrary ...more
By Nature (2966), Hampton Bays on Dec 18, 13 7:34 PM
"Never Say Never . . . "
By PBR (4956), Southampton on Dec 19, 13 5:03 AM
Again, damages aren't merely to recover costs, they are specifically intended to also "punish" the offending party, and in so doing establish a concrete incentive to NOT repeat the offending behavior.
Otherwise they'll just go do it again...
By zaz (197), East Hampton on Dec 19, 13 11:38 AM
I saw the stupid ARB meetings on channel 22. The ARB was letting testimony to be read by third parties without ever having the so called experts present. I listened to one person after the other call residents racists, and make up facts with no back up. Besides Lucius Ware I don't think there was a darn person who knew who Mr Concer was. It's a shame no one said anything before this property was sold. It's a shame they just named the other side of Lake Agawam Fred Havelmeyer park. Thanks Fred for ...more
By chief1 (2800), southampton on Dec 16, 13 4:56 PM
"The village has harmed my clients financially, and it is my intent to return the favor in multiple."

And you wonder why people often speak ill of lawyers. Ol' Captain Ahab is off to chase the whale that crippled him, so to speak...
Dec 16, 13 8:22 PM appended by Mr. Z
Just for fun: "Seven social sins: politics without principles, wealth without work, pleasure without conscience, knowledge without character, commerce without morality, science without humanity, and worship without sacrifice." ~ Mahatma Gandhi
By Mr. Z (11847), North Sea on Dec 16, 13 8:22 PM
1 member liked this comment
He also said this:

"My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby - not even money, certainly ...more
By Mr. Z (11847), North Sea on Dec 17, 13 11:34 AM
You forgot another proverb "Taking of private property without compensation" Mr Z you always inject yourself into every conversation with something totally unrelated. This is the US not India, and we have constitutional rights.
By chief1 (2800), southampton on Dec 17, 13 1:49 PM
1 member liked this comment

Wisdom is never irrelevant, but it is to a mind which is a closed loop.

Your failure to see any analogous relationship ain't mine. And, don't put words in my mouth or I will run them down yours. Just for reference, India has been a democratic republic since 1950. So, they've had constitutional rights for over sixty years smart guy. And, they struggled for independence from Britain as well. You should check out Part Three of their Constitution sometime...
Dec 18, 13 12:41 AM appended by Mr. Z
BTW, we do have the freedom of speech in this country. I can't stand your driveling lack of intellect but you don't see me whining about it do you?
By Mr. Z (11847), North Sea on Dec 18, 13 12:41 AM
Ms B. What is the PCAC, and why would they negotiate for the taxpayers of the Village? Is that a part of the Architectural Review process?
By 11953guest (48), southampton on Dec 16, 13 9:06 PM
I hope that the Mayor and Trustees strive to update the weaknesses in the Village Code to avoid this kind of pain and Lead in such a way to guide future decisions and policy. The ARB does a thankless and fine job.
By blackduck1 (20), southampton on Dec 16, 13 10:25 PM
1 member liked this comment
Village of Southampton - Centennial Celebration 1994
Published by Centennial Committee of the Village of Southampton, Southampton, NY, 1994
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By MsB (17), Southampton on Dec 17, 13 12:00 AM
This is the kind of craziness that puts American cities into bankruptcy proceedings. Somebody buys a house on the up and up with plans to renovate (employing local contractors, pumping money into the local economy) and then somebody else decides to block it because somebody might have had a connection with it, because obstructionism is in vogue, and fun.
And every inch of the town built on top of murdered native Americans, but, let's not focus on the truth! Indians aren't nearly as sexy as ...more
By biracdad100 (1), southampton on Dec 17, 13 11:01 AM
3 members liked this comment
Outrageous! SH buyers beware!
I don't understand how this has gotten out of control like this. Especially since there's no proof Concer has ever even lived in the house. It seems the house most likely didn't even exist back then! Plus these owner's constitutional rights are being trampled on at great expense to them and the village.
My understanding is this house sat on the market for years until it was officially deemed to have no historical value. Now it suddenly and quite vaguely ...more
By Jon1 (1), Watermill on Dec 17, 13 11:53 AM
1 member liked this comment
To oyster-
Just bc the house has wide plank floors that you saw from a picture on zillow does not mean the house is still intact from the 1800's. I can got to Home Depot tomorrow and buy floors that look 200 years old.
By GoldenBoy (351), EastEnd on Dec 17, 13 4:43 PM
should have jsut knocked down and listened to the uproar for a few weeks and it would have been over. no conclusive evidence he ever was living there so what is the big fuss. agree with Oyster and can go to Vermont and buy the same "OLD" floor boards. save the taxpayers some money and setlle the suit OH WAIT, we may have a racial issue here which cannot be proven. Sure the new owners will make a generous contribution to a needy organization in the future but don't make the "Village People: (no ...more
By xtiego (698), bridgehampton on Dec 17, 13 6:52 PM