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Dec 17, 2018 11:48 AMPublication: The Southampton Press

Southampton Town ZBA Chair, Attorney Stand Behind Policy Despite State Official's Criticism

The Southampton Town Zoning Board of Appeals. DANA SHAW
Dec 17, 2018 11:48 AM

Although a state government watchdog criticized how the Southampton Town Zoning Board of Appeals makes decisions on applications it considers, claiming that it violates the state’s Open Meetings Law, the board’s chairman stood firm this week behind the process and said that the town attorney’s office sees nothing wrong with the practice.

A judge may make the ultimate determination, as at least one local environmental group plans to challenge the policy in court as part of an Article 78 lawsuit seeking to overturn a recent controversial decision to allow a golf course in East Quogue.

Following the decision, that State Committee on Open Government Executive Director Robert Freeman, when asked by The Press to review the board’s decision-making process, said that it appeared that the policy violated the state’s Open Meetings Law—which guarantees that meetings of public bodies be conducted in an open and public manner.

He noted that the board does not deliberate publicly prior to voting on applications, instead relying on an assistant town attorney to privately poll members via email, and prepare a written decision based on a majority of votes.

A number of area environmentalists and activists, as well as New York State Assemblyman Fred W. Thiele Jr., have since publicly agreed with Mr. Freeman’s interpretation of the Open Meetings Law, which requires all “deliberation” by a quorum of members—every substantive discussion that leads to a vote, not just the vote itself—take place in public.

“I know there’s a lawsuit coming,” Mr. Thiele said. “The intent of the Open Meetings Law is so that the public can see how their government is making decisions. To me, the way the decision was made in the case of East Quogue clearly violated the spirit, if not the letter, of the law. A resolution dropped out of the sky and they voted. No one knows how that decision got written.”

The board’s chairman, Adam Grossman, said he and his fellow board members have been advised by Southampton Town Attorney James Burke that their current procedure is in full compliance with the law.

Neither Mr. Burke or Assistant Town Attorney Kathryn Garvin, who provides legal counsel for the ZBA, returned multiple requests for comment this week. According to Mr. Grossman, the two attorneys have said they have “no interest” in talking to The Press regarding Mr. Freeman’s interpretation.

While he did not dismiss Mr. Freeman’s decision, Mr. Grossman said he would stand behind the town attorney’s determination.

“My goal is to fully comply with the Open Meetings Law, and I would be glad to continue to have a dialogue with the town attorney's office,” Mr. Grossman said. “It may be that Mr. Freeman is correct in his assessment, but I’m relying on the town attorney to guide me.”

Currently, in lieu of public deliberation, Ms. Garvin sends a private email to each individual board member, asking whether they are in favor of or opposed to the application. Board members typically respond with a simple “yes” or “no,” and then the written decision—which is strictly derived from the testimony submitted by attorneys arguing in favor of or against the application—is prepared. The vote is then held in public.

It’s a policy that Pine Barrens Society President Richard Amper has called “bad government,” and will likely be addressed in an Article 78 lawsuit the society plans to file in coming weeks in an effort to overturn the recent ZBA decision to approve an 18-hole golf course as a recreational use in a luxury housing development in East Quogue.

The developers behind the project, Arizona-based Discovery Land Corporation, asked to have the golf course built as a recreational amenity to a proposed 118-unit residential subdivision off Spinney Road. The resolution was approved, 5-2, with only ZBA Chairman Adam Grossman and board member Helene Burgess dissenting.

Mr. Amper said on Thursday morning that his organization’s board of directors gave him the green light to file the lawsuit.

Mr. Amper has said that the potential litigation will also focus on the ZBA’s interpretation of the zoning code—particularly Section 330, which spells out what constitutes a “subordinate, customary and accessory use,” as well as the ZBA’s blatant disregard of the town’s “Open Space Law,” or “Cluster Law.”

The law, which echoes state law, requires houses or residential buildings to be clustered together to allow for more contiguous open space to be created. It also states that a minimum of 65 percent of the property in question must be preserved as open space.

On Thursday, Mr. Grossman recalled an Article 78 lawsuit from several years ago in which the ZBA was criticized for violating the Open Meetings Law. He said it was either thrown out or a judge ruled in favor of the regulatory board. He could not recall the details of the lawsuit.

“I’m not aware of any judge that has ever agreed with that position,” he said. “In other Article 78s, I would say 95 percent of the time our decisions are affirmed.”

He noted that should a judge rule that the board’s current policy does, in fact, violate the Open Meetings Law, he would consider a change in procedure. “I’m open to suggestions,” he said.

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You have a typo in your headline
By dfree (786), hampton bays on Dec 17, 18 9:59 PM
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