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Jul 16, 2019 4:27 PMPublication: The Southampton Press

Duryea's Reps See Coordinated Effort By East Hampton Town To 'Shut Down' Restaurant

Duryea's Lobster Deck in Montauk.    MICHAEL WRIGHT
Jul 18, 2019 10:32 AM

Representatives of Duryea’s Lobster Deck owner Marc Rowan—and Mr. Rowan himself—have accused various town agencies and officials of conspiring to “shut down” the venerable Montauk waterside restaurant and have launched a website that shares a detailed chronology and documentation of their legal interactions with the town since Mr. Rowan purchased the property in 2014.

Mr. Rowan and two attorneys representing him have all claimed in recent days that town officials appear to them to be working in concert to delay or derail the efforts of representatives of the restaurant to secure the legal rights to legalize and expand the restaurant, while at the same time seeking to undo a settlement agreement and revoke a certificate of occupancy, because of political pressures.

They point to what they see as a coordinated effort by town officials to push for the revocation of the certificate of occupancy issued for the property in February, in accordance with a stipulation of settlement that the town says was never approved by the Town Board and should not have been signed.

Mr. Rowan has said that the settlement, and the lawsuits that led to it, were spurred by the town as a way to provide “political cover” for allowing the changes that Mr. Rowan has sought without protracted legal battles.

In a letter to the town’s Planning Board asking that a recent discussion of the restaurant’s pending site plan application be tabled to another date, attorney Gayle Pollack wrote: “It is clear that the Planning Board has joined in the town’s coordinated litigation strategy, along with the Town Board, the Building Department and the [Zoning Board of Appeals] to shut down Duryea’s.”

Ms. Pollack’s letter drew a sharp rebuke from Planning Board Chairman Sam Kramer at last week’s board meeting, who noted that the Planning Board is not itself a party to any of the five lawsuits between the town and Mr. Rowan’s corporation Sunrise Tuthill LLC—all five of which were, in fact, initiated by Sunrise Tuthill, seeking to stop the town from taking various steps to impose authority over the waterfront property’s allowed uses and features.

“This board, this body, is an independent body,” Mr. Kramer said, pounding his fist on the board’s conference table several times. “We do not answer to the Town Board. We do not answer to anyone but this board. And we play ball according to the rules.”

Attorney Steven Stern, who is representing the town in its renewed defense of the lawsuits, and was acting as the Planning Board’s counsel at the most recent meeting, also robustly denied that any town department or representative is taking anything but a measured and egalitarian approach to the assessment of Duryea’s operation and its requests for new rights of use.

“There is no coordinated litigation strategy here to shut down Duryea’s,” he said last week. “This is really about just seeing that Duryea’s complies with the law and follows the proper processes involved.”

Mr. Stern said that from his conversations with three of Mr. Rowan’s attorneys—Ms. Pollack, Edward Burke Sr. and Michael Walsh—he had understood that the restaurant representatives wished to proceed with the original site plan application, with the understanding that nothing would be granted by the Planning Board until a court has ruled on the status of a stipulation of settlement signed last winter but then requested to be withdrawn by the town after its details became public nearly two months later, sparking outrage from residents.

Mr. Walsh also issued a letter to the Planning Board, following Mr. Kramer and Mr. Stern’s comments, citing a number of instances in the last five months in which he sees town officials as having sought to stall or hamstring the Duryea’s representatives from making their case by refusing to submit his own memos in response to planning staff assessments and by scheduling hearings just a few days after some of those assessments were sent to him.

And in a conversation on Tuesday, Mr. Rowan himself said that his attorneys are correct in their assertions and that the town seems to be spending inordinate amounts of time and money to combat what he says will be very minor changes at the property.

“Not a single brick will be added, not a single board will be nailed,” Mr. Rowan said. “If you step back, our site plan asks for only one thing: We want to be able to add wait staff service.”

Mr. Rowan, however, acknowledged that the application also asks that the restaurant be legalized for 134 seats, about 44 more than he says are set up in the dining area now, which is in itself a number far above what some critics say has ever been legally allowed at the property.

The application also proposes to install a nitrogen-reducing septic system on a portion of the property that is zoned residential. The system would help with water quality issues, but would also allow for an additional 28 seats to be added to the interior portions of what is now the restaurant and seafood shop.

Mr. Rowan said the town spurred the lawsuits to facilitate the town acquiescing to his plans but is now wading into a legal war to shut down the decades-old business, because of the complaints from a few residents.

Town Supervisor Peter Van Scoyoc said this week that neither has ever been his or the town’s approach.

“I will say, as I said to Mr. Rowan over a year ago, the issues he has with that property are best resolved by going through the site plan review process like every other commercial property has to do,” he said. “We have community standards, which we are bound to uphold, and we are going to continue trying to treat everyone on a fair and equal basis in that process.”

Mr. Rowan, who is the founder and manager of one of the world’s largest hedge funds, said that the stipulation of settlement had allowed only for sensible and equitable changes at the property that he believes will ultimately be cleared in court, but at great additional expense to both sides.

“I do not have a litigious history—the only people that win in lawsuits are the attorneys,” he said. “But now a court will decide, and the town will have spent a million bucks. The question is: Why?”

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