Preview
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
Exhibit 1
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
In the Matter of the Application of Index No.
SUNRISE TUTHILL I, LLC,
Petitioner, VERIFIED PETITION
For an Order and Judgment Pursuant to Article 78 of the
CPLR and for Additional Relief,
-against-
ZONING BOARD OF APPEALS OF THE TOWN OF
EAST HAMPTON,
Respondent,
-and-
TUTHILL ROAD ASSOCIATION, EDNA
MCGLYNN, JAMES MCGLYNN, LISA GREN CI,
HILDA PLUOWSKI, and HANNAH KIRSCHNER,
Nominal Res ondents.
Petitioner Sunrise Tuthill I, LLC, by its attorneys, Morrison Cohen LLP and the
Law Offices of Michael G. Walsh, alleges the following as and for its Verified Petition against
Respondents Zoning Board of Appeals ("ZBA") of the Town of East Hampton (the "Town") and
Nominal Respondents the Tuthill Road Association, Edna McGlynn, James McGlynn, Lisa
Grenci, Hilda Pluhowski, and Hannah Kirschner.
NATURE OF DISPUTE
1. In 1997, after a full physical inspection and historical review by Town
Chief Building Inspector Fred Sellers, and a full appeal process, the ZBA issued a determination
setting forth the uses of Petitioner's property, including a significant food service component.
On or about February 19, 2019, the Town Building Department finally issued a certificate of
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occupancy (the "CofO") memorializing that determination. Now, over two decades later, the
ZBA has been asked to reconsider that 1997 determination in an appeal (the "Appeal") filed by
Nominal Respondents the Tuthill Road Association, Edna McGlynn, James McGlynn, Lisa
Grenci, Hilda Pluhowski, and Hannah Kirschner (collectively, the "Applicants"). Petitioner files
this Article 78 Proceeding seeking a writ of prohibition preventing the ZBA from taking any
action on the Appeal because the Appeal only raises challenges that fall outside the ZBA's
jurisdiction. The ZBA does not have jurisdiction to rule on the issues raised in the Appeal for
four separate reasons.
2. First, the Town Code does not give the ZBA the statutory authority to hear
a challenge to the issuance of a certificate of occupancy. The ZBA only is authorized to hear
appeals brought under Chapter 255 of the Town Code, which addresses zoning. Applicants are
appealing a certificate of occupancy issued under Chapter 102 of the Town Code, the Town's
Building Code, as stated in the Appeal. There is simply no authorization for the ZBA to hear the
Appeal.
3. Second, there is no current "determination" for the ZBA to consider.
Rather, the Town Building Department recently issued the CofO, which memorializes a 1997
ZBA use determination. Court of Appeals case law confirms that the Building Department's
issuing the CofO does not "restart the clock" for an appeal of the 1997 ZBA determination.
4. Third, even if the Applicants were entitled to challenge the CofO via an
appeal to the ZBA, the 60-day statute of limitations for any challenge has long since expired, as
the CofO was "deemed issued" on January 17, 2018, and Petitioner filed a publicly available
Article 78 proceeding concerning the CofO on March 5, 2018.
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5. Fourth, the Building Department issued the CofO under a Court-ordered
settlement agreement, so jurisdiction over the CofO remains with the Court.
THE PARTIES AND JURISDICTION
6. Petitioner Sunrise Tuthill I, LLC is a limited liability company organized
and existing pursuant to the laws of the State of Delaware, duly authorized to do business in New
York, and maintaining a principal place of business in New York.
7. Petitioner is the owner of real property located at 65 Tuthill Road,
Montauk, Town of East Hampton, County of Suffolk, State of New York identified on the
Suffolk County Tax Map as parcel numbers 300-16-1-8.9 (the "Premises").
8. Respondent the Zoning Board of Appeals of the Town of East Hampton is
charged with the responsibility of hearing and deciding appeals from decisions arising under
Chapter 255 of the Town Code, among other things.
9. The ZBA is a body or officer within the meaning of Section 7802 of the
Civil Law Practice and Rules.
10. On information and belief, Nominal Respondent the Tuthill Road
Association is a neighborhood association with an address of 138 Tuthill Road, Montauk, New
York.
11. On information and belief, Nominal Respondent Edna McGlynn 1s a
natural person residing or with a second home in Montauk, New York.
12. On information and belief, Nominal Respondent James McGlynn is a
natural person residing or with a second home in Montauk, New York.
13. On information and belief, Nominal Respondent Lisa Grenci is a natural
person residing or with a second home in Montauk, New York.
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14. On information and belief, Nominal Respondent Hilda Pluhowski 1s a
natural person residing or with a second home in Montauk, New York.
15. On information and belief, Nominal Respondent Hannah Kirschner is a
natural person residing or with a second home in Montauk, New York.
16. The Nominal Respondents have been named herein solely because
Petitioner is seeking relief that impacts the Appeal filed by the Nominal Respondents, and thus
this proceeding arguably affects the rights of the Nominal Respondents.
17. Venue is proper in Suffolk County pursuant to Section 506(b) and 7804(b)
of the Civil Law Practice and Rules because the Premises is located in Suffolk County, and
because the ZBA has its principal place of business in Suffolk County.
FACTUAL BACKGROUND
A. The Chief Building Inspector and ZBA in 1997 Set Uses
of the Iconic Duryea Premises
18. The Premises, historically known as "Duryea's", is located on Fort Pond
Bay in Montauk, New York, and improved with various buildings and uses, including a seafood
operation that has existed since the late 1800's on and around the site's landmark commercial
dock.
19. A Montauk icon, Duryea's was originally owned and operated by Captain
E.B . Tuthill & Sons from 1882 through 1931, and thereafter by three generations of the Duryea
family through 2014, when the third generation (led by Perry B. Duryea, III) retired after 83
years of continuous operations.
20. Perry Duryea, Sr. operated a general store, and his wife continued a
cookhouse for the fishermen who came to tend pound nets, as well as for villagers and tourists.
This cookhouse became known as the 'Lobster Deck' - a popular waterfront destination with
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food and beverage service at Duryea's dock frequented by individuals and their families for
decades. Duryea's remains a prominent name in the regional seafood industry, as well as
popular destination for vacationers and locals alike.
21. In 1997, the then-Chief Building Inspector for the Town of East Hampton,
Frederick Sellers, performed a complete inspection of the structures on the Premises to establish
the existing uses on the Premises.
22. The Chief Building Inspector issued a memorandum dated April 30, 1997,
determining that the following uses existed on the Premises:
1) Ice Manufacturing and Storage Use (Area "A" on Plan). 2) Wholesale
and Retail Sales Use. (Area "B'' on Plan). 3) Office Use - for operation
of existing businesses (Area "C" on Plan). 4) Fish Processing Use (Fin and
Shellfish), including live storage of product (Areas "D" and "E" on Plan).
5) Fish Market Use - Showcases, Counters, Icing Areas and Refrigeration
(Area "F" on Plan). 6) Restaurant Use, including Dining Area, Prep Area,
Kitchen, Steam Room and Restrooms, and Display Area (Area "G" on
Plan). Wood decking, used in conjunction with Restaurant, was
constructed over existing concrete area (Area "H" on Plan). 7) Residential
Use (Frame Dwelling) (Area "I" on Plan). 8) Accessory Use (Frame
Garage used for Truck Repair and Storage (repair of business vehicles
only) (Area "J" on Plan).
23. In determining the pre-existing uses on the Premises, the Chief Building
Inspector not only performed a physical inspection of the Premises, but also reviewed "many
photos, newspaper articles, account ledgers, shipping orders and receipts." A copy of the April
30, 1997 memorandum by Chief Building Inspector Sellers containing his methodology and
determination (the "Sellers Determination") is attached hereto as Exhibit 1.
24. On information and belief, the Tuthill Road Association ("Tuthill
Association"), Anita Peel, Greg Donohue, and Lisa Grenci filed a limited appeal of the Sellers
Determination to the ZBA. The appeal only addressed whether the Premises "contains a lawful
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restaurant use and is lawfully improved in part with a wood deck used in conjunction with the
restaurant." See Exhibits 2 & 3. The remainder of the Sellers Determination was not appealed.
25. The ZBA held a hearing on the appeal on July 29, 1997, and issued a
written determination on October 6, 1997.
26. In the determination, the ZBA stated that the weight of the evidence
proved that "food was sold and consumed on the [P]roperty" prior to the inception of zoning,
though the food service was not a restaurant because the food service had not been continuously
conducted "by waiters or waitresses" providing table service. The ZBA Determination permitted
continued food preparation and service, and consumption of food on site. A copy of the October
6, 1997 ZBA determination (the "ZBA Determination") is attached hereto as Exhibit 4.
B. Despite the ZBA Determination Recognizing Food
Service at Duryea's, the Tuthill Association Continues
Its Assault on Duryea's Vested Rights
27. The ZBA Determination was not further challenged or appealed in Court,
but that did not stop the Tuthill Association from continuing to harass Duryea's. Rather, the
Tuthill Association maintained its attacks on the Premises.
28. For example, in a letter dated December 30, 1997, in the guise of objecting
to a site plan application for the Property, the Tuthill Association wrote to the Planning Board to
complain that the food service the ZBA had approved should in effect be reclassified as a "fast
food restaurant." A copy of the Tuthill Association's December 30, 1997 letter is attached
hereto as Exhibit 5.
29. Similarly, during the 1998 summer season, the Tuthill Association
verbally complained and wrote to the Town Building Inspector, the Town Attorney, the Town
Board, the Planning Board, the Zoning Board of Appeals, Code Enforcement, the Fire Marshall,
and the Natural Resources Department to complain that Duryea's was serving food at the
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Premises, even though food service is explicitly permitted under the ZBA Determination.
Copies of the Tuthill Association's May 25, 1998 and June 15, 1998 letters are attached hereto as
Exhibit 6.
30. In a letter dated June 19, 1998, Deputy Town Attorney Richard Whalen
refuted the Tuthill Association's claims. After speaking with Chief Building Inspector Sellers,
Whalen confirmed that the conduct the Tuthill Association complained of, including the food
service and use of the adjacent deck area for seating, did not require any further applications or
Town approvals, the ZBA Determination was "conclusive and final with respect to the subject
uses" of the Premises, and no further action was required. A copy of Mr. Whalen's June 19,
1998 letter is attached hereto as Exhibit 7.
31. On information and belief, despite the Sellers Determination, the ZBA
Determination, and the Whelan letter, the Tuthill Association has continued its assault on
Duryea's, regularly calling Town Code Enforcement with unfounded requests to investigate
purported code and use violations. Even recently, members of the Tuthill Association have
trespassed on the Premises at off days and hours to try the doors and peer in the windows. To
date, not a single use violation has been sustained against Petitioner or the Premises.
C. When the Building Department Fails to Timely Issue
Petitioner a Certificate of Occupancy Based on the
Sellers and the ZBA Determinations, a Certificate of
Occupancy is Deemed Issued January 2018
32. Petitioner purchased the Premises in or around mid-2014. In late 2017,
Petitioner sought to obtain a certificate of occupancy for the Premises drawn from the Sellers
Determination, as modified by the ZBA Determination.
33. On or about November 22, 2017, Petitioner requested that the Building
Department issue a certificate of occupancy for the Premises pursuant to East Hampton Town
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Code ("Code") § 102-14 and submitted the appropriate Building Department Certificate of
Occupancy Request Form to the Building Inspector with all required documents. A copy of
Petitioner's November 22, 2017 letter to the Building Inspector, including the Updated
Certificate of Occupancy Request Form, is annexed hereto as Exhibit 8.
34. The Building Department requested that Petitioner provide limited
administrative documentation, which Petitioner provided on December 12, 2017. A copy of
Petitioner's December 12, 2017 letter to the Building Department, which lists the requested
documentation, is attached hereto as Exhibit 9 (without enclosures). The Building Department
did not request additional information or documentation from Petitioner.
35. The Principal Building Inspector for the Building Department, Ann
Glennon, recently testified at a hearing that she also conducted a physical inspection of Duryea's
and did not find any reason during her inspection not to issue the requested certificate of
occupancy. An excerpt from Inspector Glennon's testimony at the April 10, 2019 hearing is
attached hereto as Exhibit 10; see pp. 92:25-93: 11.
36. On December 18, 2017, Petitioner confirmed to the Building Department
that it was seeking a certificate of occupancy that set out the uses previously set in the Sellers
and ZBA Determinations. A copy of Petitioner's December 18, 2017 letter to the Building
Department specifying the language for the certificate of occupancy - which is quoted from the
Sellers Determination as amended by the ZBA Determination - is attached hereto as Exhibit 11.
3 7. As it quoted the Sellers and ZBA Determinations, the certificate of
occupancy Petitioner sought would merely have acknowledged the existence of those
Determinations.
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38. The Town Code provides that a certificate of occupancy "shall be issued,
where appropriate, within 30 days after application therefor is made. Failure to act upon such
application within 30 days shall constitute approval of such application ... " East Hampton Town
Code § 102-l 6(A)(2).
39. Despite the code provision, the Building Department did not take any
action on or respond to Petitioner's request for a certificate of occupancy. The certificate of
occupancy accordingly was deemed issued no later than January 17, 2018.
D. Petitioner Brings an Article 78 Proceeding Seeking a
Writ of Mandamus to Compel the Building Department
to Issue a Certificate of Occupancy, and the Resulting
So-Ordered Stipulation of Settlement Grants Petitioner
Its Requested CofO
40. On March 5, 2018, Petitioner filed an Article 78 petition in the nature of
mandamus seeking to compel the Building Department to complete the ministerial act of issuing
a written certificate of occupancy for the Premises. A copy of the Petition, without exhibits, is
attached hereto as Exhibit 12.
41. The Town and Building Department never answered the petition. Rather,
in a so-ordered stipulation dated January 24, 2019, the parties settled the Article 78 proceeding,
as well as two contemporaneous Article 78 proceedings Petitioner brought to require the Town
Board and Town agencies to meet their administrative obligations toward the Premises. A copy
of the So-Ordered Stipulation (the "Settlement Order"), dated January 25, 2019, without exhibits,
is attached hereto as Exhibit 13.
42. In the Settlement Order, the Town agreed that a certificate of occupancy
with agreed to language from the Sellers and ZBA Determinations would issue no later than
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February 15, 2019. The settlement effectively required the Building Department to do what it
had already been required to do under the Town Code -issue the CofO for the Premises.
43. On or about February 19, 2019, the Building Department issued the CofO,
which provided for the following:
(1) ICE MANUFACTURING, SALE AND STORAGE USE
(AREA "A" ON PLAN); (2) WHOLESALE AND RETAIL
SALES USE (AREA "B" ON PLAN); (3) OFFICE USE - FOR
OPERATION OF EXISTING BUSINESSES (AREA "C" ON
PLAN"); (4) FISH PREPARATION, PROCESSING USE,
CLEANING (FIN AND SHELLFISH), INCLUDING LIVE
STORAGE OF PRODUCT (AREAS "D" AND "E" ON PLAN);
(5) FISH MARKET USE - SHOWCASE, COUNTERS, ICING
AREAS AND REFRIGERATION (AREA "F" ON PLAN); (6)
WHOLESALE/RETAIL SEAFOOD SHOP WITH ACCESSORY
PATIO DECK FOR OUTDOOR CONSUMPTION OF FOOD
SOLD AT THE DURYEA FISH MARKET (AREA "H" ON
PLAN); (7) RESIDENTIAL USE; (8) ACCESSORY FRAME
GARAGE USED FOR TRUCK REPAIR AND STORAGE
(REPAIR OF BUSINESS VEHICLES ONLY) (AREA "J" ON
PLAN); (9) PRIVATE DINING DECK; (10) OUTDOOR
FURNISHED DECK AREA FOR THE CONSUMPTION OF
FOOD AND BEVERAGES; AND (11) ONE FAMILY
RESIDENCE WITH ATTACHED GARAGE (THE "DURYEA'S
HOUSE"). PER COURT STIPULATION DATED 1/30/19. 1
(A copy of the CofO is attached hereto as Exhibit 14).
44. The CofO largely quoted verbatim the prior Determinations, though it
provided more detail on the outdoor area used for the consumption of food and beverage and
noted a deck just adjacent to the Duryea's deck.
The Settlement Order provided that (6) of the CofO would read, "Wholesale/Retail
Seafood Shop with accessory food service counters and cooking area, prep area, kitchen,
steam room and restrooms and display area, (Area 'G' on Plan); Accessory Patio Deck for
Outdoor Consumption of food sold at the Duryea Fish Market (Area 'H' on Plan)," but the
bolded language was inadvertently omitted from the CofO issued by the Building Department.
(Emphasis added.)
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E. The Applicants File the Appeal of the CofO to the ZBA
on Exactly the Same Grounds Raised in Their
Challenge to the 1997 Sellers Determination
45. On information and belief, on or about April 17, 2019, the Applicants filed
an appeal of the issuance of the CofO with the ZBA. A copy of the Appeal provided by
Applicants' counsel is attached hereto as Exhibit 14, and a copy of the supporting statement to
the Appeal is attached hereto as Exhibit 15. Though Petitioner has sought the stamped copy of
the Appeal showing the filing date from the Town, the ZBA has not responded to Petitioner's
request. In the form for the Appeal, the Applicants specify that they are appealing a
determination of the Building Inspector "concerning Sections 102-14 and 102-16A of Town
Code (requirements issuance of C.O.)."
46. In the Appeal, the Applicants make the same claims that they have been
making since the early 1990s, all of which were affirmatively addressed by the 1997 ZBA
Determination, as confirmed by Deputy Town Attorney Whelan in 1998. The very first sentence
in the Applicants' statement of facts reads, "Duryea's has a history oflawlessness dating back to
1990." From there, the Applicants proceed to rehash the same claims that they made - and lost -
before the ZBA in 1997.
47. The below charts show the complete overlap between the Applicants'
claims in 1997-98 and now:
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1997/98 Com~laints Current A1meal
Duryea' s operates as a fast food restaurant, Duryea's operates a restaurant with liquor
including by allowing liquor on premises, but service on an unapproved deck without
does not have required permits and approvals required permits and approvals. Ex. 16 at p. 2.
to do so. Ex. 2; see also letters dated July 27,
1997 and May 25, 1998 (Exs. 3 & 6).
There is no approval for any type of fixed Duryea's does not have approvals for table
seating in the building or on the deck, and the service or fixed seats and tables. Ex. 16 at p. 2.
deck used for outdoor seating is illegal. See
letters dated May 25, 1998 and June 15, 1998
(Ex. 6).
The purported restaurant lacks proper The purported restaurant lacks proper oversight
approvals from Town and State agencies. See from the County. Ex. 16 at p. 4.
letter dated June 15, 1998 (Ex. 6).
The septic waste resulting from Duryea's The septic waste resulting from Duryea' s food
continued food service would adversely affect service is adversely affecting Fort Pond Bay.
Fort Pond Bay and Tuthill Pond. Ex. 2; see Ex. 16 at p. 4.
also letter dated July 27, 1997 (Ex. 3).
The parking required for food service at The parking resulting from food service at
Duryea's would adversely affect Fort Pond Duryea's is improper and dangerous. Ex. 16 at
Bay and Tuthill Pond. Ex. 2; see also letters p. 4.
dated July 27, 1997 and May 25, 1998 (Exs. 3
&6).
Necessary environmental review of the Necessary SEQRA and other review of the
Premises has not been conducted. See letter Premises have not been conducted. Ex. 16 at
dated June 15, 1998 (Ex. 6). p. 7.
48. On information and belief, the Applicants have coordinated' with David
Buda and potentially with Town employees. Petitioner believes this because, among other
things, David Buda attended a Town Board meeting held on February 21, 2019, shortly after the
Settlement Order was filed, with substantial prepared remarks. An excerpt of Mr. Buda's
testimony, in which Mr. Buda states that he monitor's the Town's land use litigations, is attached
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hereto as Exhibit 17. Shortly thereafter, Mr. Buda, Lisa Grenci, and Richard Pluhowski
appeared with prepared remarks disparaging Duryea's at a March 6, 2019 Planning Board
meeting, even though there was almost no public notice that Duryea's site plan application
would be presented at that meeting.
CLAIM FOR RELIEF
(Writ of Prohibition Against ZBA)
49. Petitioner repeats and realleges the foregoing allegations as if fully set
forth herein.
50. A writ of prohibition prevents an agency from exercising power beyond its
jurisdiction. For that reason, the traditional Article 78 elements of ripeness and exhaustion do
not apply to an Article 78 proceeding seeking a writ of prohibition.
51. Pursuant to the Town Code, and as relevant to this proceeding, the ZBA
only has jurisdiction over "[a]pplications brought by aggrieved persons from interpretations of
provisions of [Chapter 255 of the Town Code] made by the Building Inspector or for review of
other orders, requirements, decisions or determinations made by the Building Inspector ... " See
Town Code§ 255-8-30(A)(l).
52. For the ZBA to have jurisdiction over an appeal, the appeal must be filed
within 60 days of the "filing" of the determination, which is defined as the date on which the
Building Inspector has placed the determination "in any of his official files or records regarding
the affected premises" or upon delivery to the property owner. See Town Code § 255-8-35(A),
(B)(l).
53. Here, the ZBA does not have jurisdiction over the Appeal, and thus this
Court should issue a writ of prohibition, for four separate reasons.
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54. First, the Town Code only grants the ZBA jurisdiction to hear appeals
challenging zoning determinations under Chapter 255 of the Town Code. As the Applicants seek
to challenge a determination made by the Building Inspector under Chapter 102 of the Town
Code, the ZBA does not have jurisdiction over the appeal.
55. Second, there is no current determination to challenge. Rather, the Appeal
seeks to challenge the 1997 ZBA Determination. In addressing the Tuthill Association's 1997
appeal of the Sellers Determination, the ZBA confirmed that there was a pre-existing food
service at the Duryea's. See Ex. 4. Even after the 1997 ZBA Determination issued, the Tuthill
Association kept up its harassing challenges to the food service at Duryea's. See Exs. 5 & 6.
Now that the Building Department has finally issued the CofO memorializing the 1997 ZBA
Determination, the Applicants are attempting to once again challenge that Determination. As the
chart in Paragraph 4 7 shows, the Applicants are recycling their same old claims from 1997 again
on this Appeal.
56. The Court of Appeals unequivocally has held that the mere issuance of a
certificate of occupancy acknowledging a prior substantially similar determination does not
create a new determination subject to appeal. See Matter of Palm Mgmt. Corp. v. Goldstein, 8
N.Y.3d 337, 340-41 (2007) (finding ZBA did not have jurisdiction over appeal of a certificate of
occupancy that was re-issued with additional detail because new certificate of occupancy did not
restart the timing to file an appeal); see also Jane H Concannon Revocable Trust v. Building
Dep't of the Town of E. Hampton, No. 4297/2016, 2018 N.Y. Misc. LEXIS 557, at *7 (Sup. Ct.
Suffolk Cty. Feb. 5, 2018) (finding issuance of building permits based on certificate of
occupancy and site plan approval did not "restart the clock" for petitioner to appeal to the ZBA
the certificate or site plan approval, and affirming dismissal of petitioner's appeal to ZBA).
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57. The CofO is largely verbatim to the ZBA Determination, though the two
do not need to be identical to preclude review of the CofO. Under settled law, the CofO need
only be "substantially identical" to the ZBA Determination. See Palm Mgmt., 8 N.Y.3d at 340-
41 (rejecting challenge to new certificate of occupancy that "was unchanged in substance from"
but contained "more detail" that prior determinations). Here, there is no material difference
between the 1997 ZBA Determination and the current CofO. The Applicants may argue that the
CofO additionally refers to a private dining deck. This ministerial difference between the ZBA
Determination and the CofO does not open the entire CofO to a new ZBA challenge. Rather,
the CofO's recognition of a small pad that has existed on site for decades is just the type of
additional detail that the Palm Mgmt. Court held did not subject the entire CofO to challenge.
58. Third, even if the CofO was subject to challenge, the time to challenge it
has long since expired. Petitioner first sought the CofO in the Fall of 2017. By no later than
December 18, 2017, Petitioner had submitted the necessary paperwork to obtain the CofO. See
Ex. 11. Per Town Code, the CofO was deemed issued 30 days thereafter, after the Building
Department failed to take action on the request. See Code § 102-16(A)(2). Petitioner filed an
Article 78 petition seeking to formalize the CofO on March 5, 2018. See Ex. 12. Accordingly,
there was public notice of the January 18, 2018 deemed CofO no later than March 5, 2018, over
a year before the Applicants filed the Appeal to the ZBA, well outside the 60-day statute of
limitations. See Jane H. Concannon Revocable Trust, 2018 N.Y. Misc. LEXIS 557, at *5-6
(dismissing appeal of issuance of certificate of occupancy when appeal was filed more than 60
days after reasonable notice of certificate's issuance).
59. Fourth, the ZBA is not the correct forum for the Applicants' appeal.
Petitioner sought a mandatory CofO from the Building Department based on the Sellers and
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ZBA Determinations. When the Building Department failed to meet its obligation to order the
CofO, Petitioner filed an Article 78 petition seeking mandamus to compel the Building
Department to issue the CofO for Duryea's. See Ex. 12. The Article 78 petition was settled in
the Settlement Order by having the Building Department provide the requested relief, issuing the
requested CofO. See Ex. 13 at ,i 5. To the extent that the Applicants have a complaint about the
Court-ordered CofD, its avenue for relief lies with the Court, not via an end run to the ZBA.
60. No prior request has been made for the relief sought herein.
WHEREFORE, Petitioner requests an Order and Judgment under CPLR Article
78 be granted as follows:
1) Issuing a writ of prohibition precluding the ZBA and any of its
affiliates, agents, employees and/or others at its direction and/or
otherwise under its control from determining or taking any other
action on the Appeal; and
2) Granting such other and further relief as this Court may deem just
and proper.
Dated: New York, New York
May 6, 2019
MORRISON COHEN LLP
By:
Gayle Pollack
909 Third Avenue
New York, New York 10022
(212) 735-8600
and
THE LAW OFFICES OF MICHAEL G. WALSH
860 Montauk Highway, Unit 4
Water Mill, New York 11976
Attorneys for Petitioner Sunrise Tuthill L LLC
#8540116 vi 1026443 10001 16
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
VERIFICATION
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
Marc Rowan being duly sworn, deposes and says:
1. That I am the Manager/Member of the Plaintiff, Sunrise Tuthill I, LLC.
2. That I have read the foregoing Verified Petition and know the contents thereof;
that the same is true to my knowledge, except as to those matters stated to be alleged upon
information and belief, and that as to those matters, I believe the1"~ - ~
Marc Rowan, as Manager/Member
of Sunrise Tuthill I, LLC
Sworn to me before this
__f__ day of May, 2019
ELIZABETH IRENE
Notary Public, State of New'ltlllc
No. 01IA6224637
Ouallfted In New York County .., '2.-
Commissloo Expires Sept. 04, 20.!:'.'...
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
EXHIBIT 1
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
0
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
BUILDING DEPARTMENT
TOWN OF EAST HAMPTON
300 Pantigo Place - Suite 104
East Hampton, N. Y., 11937
FREDERICK E. SEUERS
Chief Building Inspector
April 30, 1997
MEMORANDUM
TO: Patricia Mansir, Chair, Planning Board
I
FROM: Frederick E. Se/krs, Chief Building Inspe<:10~£/ REC...9'.IED
RE: Duryea Project APR 3 0·1997
Premises situate: Tuthill Road, Montauk
T. M. 3~16-1-8.1, 8.2, 8.6 &: 8.7
PLANrJiNG 80AAD
In response to your memo ofApril 18, 1997, please be advised that I made a complete inspection ofthe
structures on the above-referenced parcel, this date, to establish the existing uses.
Attached you will find a plan showing the structures and the existing uses. Based on Code definitions
and descriptions, I find the following uses existi~g:
I
I) Ice Manufacturing and Storage °'se (Area "A" on Plan).
2) Wholesale and Retail Sales Use (Area "B" on Plan).
3) Office Use - for operation of existing businesses (Area •c• on Plan).
4) Fish Processing Use (Fin and Shellfish), including live storage ofproduct (Areas "D" and "E"
on Plan).
5) Fish Market Use - Showcases, c Junrers, Icing Areas and Refrigeration (Area "F" on Plan.
6)
I
Restaurant Use, including DininKj Area, Prep Area, Kitchen, Steam Room and Restrooms, and
Display Area (Area "G" on Plan). Wood decking, used in conjunction with Restaurant, was
constructed over existing concrete-area (Area "H" on Plan).
7)
I
Residential Use (Frame Dwelling) (Area "I" on Plan).
I
8) Accessory Use (Frame Garage used for Truck Repair and Storage (repair of business vehicles
only) (Area "J" on Plan).
I have reviewed many photos, newspaper articles, account ledgers, shipping orders and receipts showing
that the above uses existed prior to Zoning. Federal Income Tax Returns were also made available to me as
additional proof ofpre-existing use, which I have not reviewed at this time.
Based on the information presented to me, and an inspection of the property, I believe that the said
property would be classified as a Pre-Existing "Multiple Business" Complex.
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
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FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
EXHIBIT 2
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018
NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023
Appeal to Zoning Board of Appeals
Town of East Hampton, New York
The Tuthill Road Association (the "Association") and three of its individual
members (the "Individual Appellants") hereby appeal, to the Zoning Board of Appeals
(the "ZBA") of the Town of East Hampton, the determination, dated April 30, 1997, of
the Town's
Preview
FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 Exhibit 1 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK In the Matter of the Application of Index No. SUNRISE TUTHILL I, LLC, Petitioner, VERIFIED PETITION For an Order and Judgment Pursuant to Article 78 of the CPLR and for Additional Relief, -against- ZONING BOARD OF APPEALS OF THE TOWN OF EAST HAMPTON, Respondent, -and- TUTHILL ROAD ASSOCIATION, EDNA MCGLYNN, JAMES MCGLYNN, LISA GREN CI, HILDA PLUOWSKI, and HANNAH KIRSCHNER, Nominal Res ondents. Petitioner Sunrise Tuthill I, LLC, by its attorneys, Morrison Cohen LLP and the Law Offices of Michael G. Walsh, alleges the following as and for its Verified Petition against Respondents Zoning Board of Appeals ("ZBA") of the Town of East Hampton (the "Town") and Nominal Respondents the Tuthill Road Association, Edna McGlynn, James McGlynn, Lisa Grenci, Hilda Pluhowski, and Hannah Kirschner. NATURE OF DISPUTE 1. In 1997, after a full physical inspection and historical review by Town Chief Building Inspector Fred Sellers, and a full appeal process, the ZBA issued a determination setting forth the uses of Petitioner's property, including a significant food service component. On or about February 19, 2019, the Town Building Department finally issued a certificate of #8540116 vi 102644310001 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 occupancy (the "CofO") memorializing that determination. Now, over two decades later, the ZBA has been asked to reconsider that 1997 determination in an appeal (the "Appeal") filed by Nominal Respondents the Tuthill Road Association, Edna McGlynn, James McGlynn, Lisa Grenci, Hilda Pluhowski, and Hannah Kirschner (collectively, the "Applicants"). Petitioner files this Article 78 Proceeding seeking a writ of prohibition preventing the ZBA from taking any action on the Appeal because the Appeal only raises challenges that fall outside the ZBA's jurisdiction. The ZBA does not have jurisdiction to rule on the issues raised in the Appeal for four separate reasons. 2. First, the Town Code does not give the ZBA the statutory authority to hear a challenge to the issuance of a certificate of occupancy. The ZBA only is authorized to hear appeals brought under Chapter 255 of the Town Code, which addresses zoning. Applicants are appealing a certificate of occupancy issued under Chapter 102 of the Town Code, the Town's Building Code, as stated in the Appeal. There is simply no authorization for the ZBA to hear the Appeal. 3. Second, there is no current "determination" for the ZBA to consider. Rather, the Town Building Department recently issued the CofO, which memorializes a 1997 ZBA use determination. Court of Appeals case law confirms that the Building Department's issuing the CofO does not "restart the clock" for an appeal of the 1997 ZBA determination. 4. Third, even if the Applicants were entitled to challenge the CofO via an appeal to the ZBA, the 60-day statute of limitations for any challenge has long since expired, as the CofO was "deemed issued" on January 17, 2018, and Petitioner filed a publicly available Article 78 proceeding concerning the CofO on March 5, 2018. #8540116 vi 1026443 10001 2 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 5. Fourth, the Building Department issued the CofO under a Court-ordered settlement agreement, so jurisdiction over the CofO remains with the Court. THE PARTIES AND JURISDICTION 6. Petitioner Sunrise Tuthill I, LLC is a limited liability company organized and existing pursuant to the laws of the State of Delaware, duly authorized to do business in New York, and maintaining a principal place of business in New York. 7. Petitioner is the owner of real property located at 65 Tuthill Road, Montauk, Town of East Hampton, County of Suffolk, State of New York identified on the Suffolk County Tax Map as parcel numbers 300-16-1-8.9 (the "Premises"). 8. Respondent the Zoning Board of Appeals of the Town of East Hampton is charged with the responsibility of hearing and deciding appeals from decisions arising under Chapter 255 of the Town Code, among other things. 9. The ZBA is a body or officer within the meaning of Section 7802 of the Civil Law Practice and Rules. 10. On information and belief, Nominal Respondent the Tuthill Road Association is a neighborhood association with an address of 138 Tuthill Road, Montauk, New York. 11. On information and belief, Nominal Respondent Edna McGlynn 1s a natural person residing or with a second home in Montauk, New York. 12. On information and belief, Nominal Respondent James McGlynn is a natural person residing or with a second home in Montauk, New York. 13. On information and belief, Nominal Respondent Lisa Grenci is a natural person residing or with a second home in Montauk, New York. #8540116 vi \026443 \0001 3 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 14. On information and belief, Nominal Respondent Hilda Pluhowski 1s a natural person residing or with a second home in Montauk, New York. 15. On information and belief, Nominal Respondent Hannah Kirschner is a natural person residing or with a second home in Montauk, New York. 16. The Nominal Respondents have been named herein solely because Petitioner is seeking relief that impacts the Appeal filed by the Nominal Respondents, and thus this proceeding arguably affects the rights of the Nominal Respondents. 17. Venue is proper in Suffolk County pursuant to Section 506(b) and 7804(b) of the Civil Law Practice and Rules because the Premises is located in Suffolk County, and because the ZBA has its principal place of business in Suffolk County. FACTUAL BACKGROUND A. The Chief Building Inspector and ZBA in 1997 Set Uses of the Iconic Duryea Premises 18. The Premises, historically known as "Duryea's", is located on Fort Pond Bay in Montauk, New York, and improved with various buildings and uses, including a seafood operation that has existed since the late 1800's on and around the site's landmark commercial dock. 19. A Montauk icon, Duryea's was originally owned and operated by Captain E.B . Tuthill & Sons from 1882 through 1931, and thereafter by three generations of the Duryea family through 2014, when the third generation (led by Perry B. Duryea, III) retired after 83 years of continuous operations. 20. Perry Duryea, Sr. operated a general store, and his wife continued a cookhouse for the fishermen who came to tend pound nets, as well as for villagers and tourists. This cookhouse became known as the 'Lobster Deck' - a popular waterfront destination with #8540116 vi \02644310001 4 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 food and beverage service at Duryea's dock frequented by individuals and their families for decades. Duryea's remains a prominent name in the regional seafood industry, as well as popular destination for vacationers and locals alike. 21. In 1997, the then-Chief Building Inspector for the Town of East Hampton, Frederick Sellers, performed a complete inspection of the structures on the Premises to establish the existing uses on the Premises. 22. The Chief Building Inspector issued a memorandum dated April 30, 1997, determining that the following uses existed on the Premises: 1) Ice Manufacturing and Storage Use (Area "A" on Plan). 2) Wholesale and Retail Sales Use. (Area "B'' on Plan). 3) Office Use - for operation of existing businesses (Area "C" on Plan). 4) Fish Processing Use (Fin and Shellfish), including live storage of product (Areas "D" and "E" on Plan). 5) Fish Market Use - Showcases, Counters, Icing Areas and Refrigeration (Area "F" on Plan). 6) Restaurant Use, including Dining Area, Prep Area, Kitchen, Steam Room and Restrooms, and Display Area (Area "G" on Plan). Wood decking, used in conjunction with Restaurant, was constructed over existing concrete area (Area "H" on Plan). 7) Residential Use (Frame Dwelling) (Area "I" on Plan). 8) Accessory Use (Frame Garage used for Truck Repair and Storage (repair of business vehicles only) (Area "J" on Plan). 23. In determining the pre-existing uses on the Premises, the Chief Building Inspector not only performed a physical inspection of the Premises, but also reviewed "many photos, newspaper articles, account ledgers, shipping orders and receipts." A copy of the April 30, 1997 memorandum by Chief Building Inspector Sellers containing his methodology and determination (the "Sellers Determination") is attached hereto as Exhibit 1. 24. On information and belief, the Tuthill Road Association ("Tuthill Association"), Anita Peel, Greg Donohue, and Lisa Grenci filed a limited appeal of the Sellers Determination to the ZBA. The appeal only addressed whether the Premises "contains a lawful #8540116 vi 102644310001 5 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 restaurant use and is lawfully improved in part with a wood deck used in conjunction with the restaurant." See Exhibits 2 & 3. The remainder of the Sellers Determination was not appealed. 25. The ZBA held a hearing on the appeal on July 29, 1997, and issued a written determination on October 6, 1997. 26. In the determination, the ZBA stated that the weight of the evidence proved that "food was sold and consumed on the [P]roperty" prior to the inception of zoning, though the food service was not a restaurant because the food service had not been continuously conducted "by waiters or waitresses" providing table service. The ZBA Determination permitted continued food preparation and service, and consumption of food on site. A copy of the October 6, 1997 ZBA determination (the "ZBA Determination") is attached hereto as Exhibit 4. B. Despite the ZBA Determination Recognizing Food Service at Duryea's, the Tuthill Association Continues Its Assault on Duryea's Vested Rights 27. The ZBA Determination was not further challenged or appealed in Court, but that did not stop the Tuthill Association from continuing to harass Duryea's. Rather, the Tuthill Association maintained its attacks on the Premises. 28. For example, in a letter dated December 30, 1997, in the guise of objecting to a site plan application for the Property, the Tuthill Association wrote to the Planning Board to complain that the food service the ZBA had approved should in effect be reclassified as a "fast food restaurant." A copy of the Tuthill Association's December 30, 1997 letter is attached hereto as Exhibit 5. 29. Similarly, during the 1998 summer season, the Tuthill Association verbally complained and wrote to the Town Building Inspector, the Town Attorney, the Town Board, the Planning Board, the Zoning Board of Appeals, Code Enforcement, the Fire Marshall, and the Natural Resources Department to complain that Duryea's was serving food at the #8540116 vi 1026443 10001 6 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 Premises, even though food service is explicitly permitted under the ZBA Determination. Copies of the Tuthill Association's May 25, 1998 and June 15, 1998 letters are attached hereto as Exhibit 6. 30. In a letter dated June 19, 1998, Deputy Town Attorney Richard Whalen refuted the Tuthill Association's claims. After speaking with Chief Building Inspector Sellers, Whalen confirmed that the conduct the Tuthill Association complained of, including the food service and use of the adjacent deck area for seating, did not require any further applications or Town approvals, the ZBA Determination was "conclusive and final with respect to the subject uses" of the Premises, and no further action was required. A copy of Mr. Whalen's June 19, 1998 letter is attached hereto as Exhibit 7. 31. On information and belief, despite the Sellers Determination, the ZBA Determination, and the Whelan letter, the Tuthill Association has continued its assault on Duryea's, regularly calling Town Code Enforcement with unfounded requests to investigate purported code and use violations. Even recently, members of the Tuthill Association have trespassed on the Premises at off days and hours to try the doors and peer in the windows. To date, not a single use violation has been sustained against Petitioner or the Premises. C. When the Building Department Fails to Timely Issue Petitioner a Certificate of Occupancy Based on the Sellers and the ZBA Determinations, a Certificate of Occupancy is Deemed Issued January 2018 32. Petitioner purchased the Premises in or around mid-2014. In late 2017, Petitioner sought to obtain a certificate of occupancy for the Premises drawn from the Sellers Determination, as modified by the ZBA Determination. 33. On or about November 22, 2017, Petitioner requested that the Building Department issue a certificate of occupancy for the Premises pursuant to East Hampton Town #8540116 vi \02644310001 7 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 Code ("Code") § 102-14 and submitted the appropriate Building Department Certificate of Occupancy Request Form to the Building Inspector with all required documents. A copy of Petitioner's November 22, 2017 letter to the Building Inspector, including the Updated Certificate of Occupancy Request Form, is annexed hereto as Exhibit 8. 34. The Building Department requested that Petitioner provide limited administrative documentation, which Petitioner provided on December 12, 2017. A copy of Petitioner's December 12, 2017 letter to the Building Department, which lists the requested documentation, is attached hereto as Exhibit 9 (without enclosures). The Building Department did not request additional information or documentation from Petitioner. 35. The Principal Building Inspector for the Building Department, Ann Glennon, recently testified at a hearing that she also conducted a physical inspection of Duryea's and did not find any reason during her inspection not to issue the requested certificate of occupancy. An excerpt from Inspector Glennon's testimony at the April 10, 2019 hearing is attached hereto as Exhibit 10; see pp. 92:25-93: 11. 36. On December 18, 2017, Petitioner confirmed to the Building Department that it was seeking a certificate of occupancy that set out the uses previously set in the Sellers and ZBA Determinations. A copy of Petitioner's December 18, 2017 letter to the Building Department specifying the language for the certificate of occupancy - which is quoted from the Sellers Determination as amended by the ZBA Determination - is attached hereto as Exhibit 11. 3 7. As it quoted the Sellers and ZBA Determinations, the certificate of occupancy Petitioner sought would merely have acknowledged the existence of those Determinations. #8540116 vi \026443 10001 8 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 38. The Town Code provides that a certificate of occupancy "shall be issued, where appropriate, within 30 days after application therefor is made. Failure to act upon such application within 30 days shall constitute approval of such application ... " East Hampton Town Code § 102-l 6(A)(2). 39. Despite the code provision, the Building Department did not take any action on or respond to Petitioner's request for a certificate of occupancy. The certificate of occupancy accordingly was deemed issued no later than January 17, 2018. D. Petitioner Brings an Article 78 Proceeding Seeking a Writ of Mandamus to Compel the Building Department to Issue a Certificate of Occupancy, and the Resulting So-Ordered Stipulation of Settlement Grants Petitioner Its Requested CofO 40. On March 5, 2018, Petitioner filed an Article 78 petition in the nature of mandamus seeking to compel the Building Department to complete the ministerial act of issuing a written certificate of occupancy for the Premises. A copy of the Petition, without exhibits, is attached hereto as Exhibit 12. 41. The Town and Building Department never answered the petition. Rather, in a so-ordered stipulation dated January 24, 2019, the parties settled the Article 78 proceeding, as well as two contemporaneous Article 78 proceedings Petitioner brought to require the Town Board and Town agencies to meet their administrative obligations toward the Premises. A copy of the So-Ordered Stipulation (the "Settlement Order"), dated January 25, 2019, without exhibits, is attached hereto as Exhibit 13. 42. In the Settlement Order, the Town agreed that a certificate of occupancy with agreed to language from the Sellers and ZBA Determinations would issue no later than #8540116 vi \026443 \0001 9 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 February 15, 2019. The settlement effectively required the Building Department to do what it had already been required to do under the Town Code -issue the CofO for the Premises. 43. On or about February 19, 2019, the Building Department issued the CofO, which provided for the following: (1) ICE MANUFACTURING, SALE AND STORAGE USE (AREA "A" ON PLAN); (2) WHOLESALE AND RETAIL SALES USE (AREA "B" ON PLAN); (3) OFFICE USE - FOR OPERATION OF EXISTING BUSINESSES (AREA "C" ON PLAN"); (4) FISH PREPARATION, PROCESSING USE, CLEANING (FIN AND SHELLFISH), INCLUDING LIVE STORAGE OF PRODUCT (AREAS "D" AND "E" ON PLAN); (5) FISH MARKET USE - SHOWCASE, COUNTERS, ICING AREAS AND REFRIGERATION (AREA "F" ON PLAN); (6) WHOLESALE/RETAIL SEAFOOD SHOP WITH ACCESSORY PATIO DECK FOR OUTDOOR CONSUMPTION OF FOOD SOLD AT THE DURYEA FISH MARKET (AREA "H" ON PLAN); (7) RESIDENTIAL USE; (8) ACCESSORY FRAME GARAGE USED FOR TRUCK REPAIR AND STORAGE (REPAIR OF BUSINESS VEHICLES ONLY) (AREA "J" ON PLAN); (9) PRIVATE DINING DECK; (10) OUTDOOR FURNISHED DECK AREA FOR THE CONSUMPTION OF FOOD AND BEVERAGES; AND (11) ONE FAMILY RESIDENCE WITH ATTACHED GARAGE (THE "DURYEA'S HOUSE"). PER COURT STIPULATION DATED 1/30/19. 1 (A copy of the CofO is attached hereto as Exhibit 14). 44. The CofO largely quoted verbatim the prior Determinations, though it provided more detail on the outdoor area used for the consumption of food and beverage and noted a deck just adjacent to the Duryea's deck. The Settlement Order provided that (6) of the CofO would read, "Wholesale/Retail Seafood Shop with accessory food service counters and cooking area, prep area, kitchen, steam room and restrooms and display area, (Area 'G' on Plan); Accessory Patio Deck for Outdoor Consumption of food sold at the Duryea Fish Market (Area 'H' on Plan)," but the bolded language was inadvertently omitted from the CofO issued by the Building Department. (Emphasis added.) #8540116 vi 1026443 10001 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 E. The Applicants File the Appeal of the CofO to the ZBA on Exactly the Same Grounds Raised in Their Challenge to the 1997 Sellers Determination 45. On information and belief, on or about April 17, 2019, the Applicants filed an appeal of the issuance of the CofO with the ZBA. A copy of the Appeal provided by Applicants' counsel is attached hereto as Exhibit 14, and a copy of the supporting statement to the Appeal is attached hereto as Exhibit 15. Though Petitioner has sought the stamped copy of the Appeal showing the filing date from the Town, the ZBA has not responded to Petitioner's request. In the form for the Appeal, the Applicants specify that they are appealing a determination of the Building Inspector "concerning Sections 102-14 and 102-16A of Town Code (requirements issuance of C.O.)." 46. In the Appeal, the Applicants make the same claims that they have been making since the early 1990s, all of which were affirmatively addressed by the 1997 ZBA Determination, as confirmed by Deputy Town Attorney Whelan in 1998. The very first sentence in the Applicants' statement of facts reads, "Duryea's has a history oflawlessness dating back to 1990." From there, the Applicants proceed to rehash the same claims that they made - and lost - before the ZBA in 1997. 47. The below charts show the complete overlap between the Applicants' claims in 1997-98 and now: #8540116 vi \02644310001 11 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 1997/98 Com~laints Current A1meal Duryea' s operates as a fast food restaurant, Duryea's operates a restaurant with liquor including by allowing liquor on premises, but service on an unapproved deck without does not have required permits and approvals required permits and approvals. Ex. 16 at p. 2. to do so. Ex. 2; see also letters dated July 27, 1997 and May 25, 1998 (Exs. 3 & 6). There is no approval for any type of fixed Duryea's does not have approvals for table seating in the building or on the deck, and the service or fixed seats and tables. Ex. 16 at p. 2. deck used for outdoor seating is illegal. See letters dated May 25, 1998 and June 15, 1998 (Ex. 6). The purported restaurant lacks proper The purported restaurant lacks proper oversight approvals from Town and State agencies. See from the County. Ex. 16 at p. 4. letter dated June 15, 1998 (Ex. 6). The septic waste resulting from Duryea's The septic waste resulting from Duryea' s food continued food service would adversely affect service is adversely affecting Fort Pond Bay. Fort Pond Bay and Tuthill Pond. Ex. 2; see Ex. 16 at p. 4. also letter dated July 27, 1997 (Ex. 3). The parking required for food service at The parking resulting from food service at Duryea's would adversely affect Fort Pond Duryea's is improper and dangerous. Ex. 16 at Bay and Tuthill Pond. Ex. 2; see also letters p. 4. dated July 27, 1997 and May 25, 1998 (Exs. 3 &6). Necessary environmental review of the Necessary SEQRA and other review of the Premises has not been conducted. See letter Premises have not been conducted. Ex. 16 at dated June 15, 1998 (Ex. 6). p. 7. 48. On information and belief, the Applicants have coordinated' with David Buda and potentially with Town employees. Petitioner believes this because, among other things, David Buda attended a Town Board meeting held on February 21, 2019, shortly after the Settlement Order was filed, with substantial prepared remarks. An excerpt of Mr. Buda's testimony, in which Mr. Buda states that he monitor's the Town's land use litigations, is attached #8540116 vl 1026443 10001 12 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 hereto as Exhibit 17. Shortly thereafter, Mr. Buda, Lisa Grenci, and Richard Pluhowski appeared with prepared remarks disparaging Duryea's at a March 6, 2019 Planning Board meeting, even though there was almost no public notice that Duryea's site plan application would be presented at that meeting. CLAIM FOR RELIEF (Writ of Prohibition Against ZBA) 49. Petitioner repeats and realleges the foregoing allegations as if fully set forth herein. 50. A writ of prohibition prevents an agency from exercising power beyond its jurisdiction. For that reason, the traditional Article 78 elements of ripeness and exhaustion do not apply to an Article 78 proceeding seeking a writ of prohibition. 51. Pursuant to the Town Code, and as relevant to this proceeding, the ZBA only has jurisdiction over "[a]pplications brought by aggrieved persons from interpretations of provisions of [Chapter 255 of the Town Code] made by the Building Inspector or for review of other orders, requirements, decisions or determinations made by the Building Inspector ... " See Town Code§ 255-8-30(A)(l). 52. For the ZBA to have jurisdiction over an appeal, the appeal must be filed within 60 days of the "filing" of the determination, which is defined as the date on which the Building Inspector has placed the determination "in any of his official files or records regarding the affected premises" or upon delivery to the property owner. See Town Code § 255-8-35(A), (B)(l). 53. Here, the ZBA does not have jurisdiction over the Appeal, and thus this Court should issue a writ of prohibition, for four separate reasons. #8540116 vi \026443 \0001 13 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 54. First, the Town Code only grants the ZBA jurisdiction to hear appeals challenging zoning determinations under Chapter 255 of the Town Code. As the Applicants seek to challenge a determination made by the Building Inspector under Chapter 102 of the Town Code, the ZBA does not have jurisdiction over the appeal. 55. Second, there is no current determination to challenge. Rather, the Appeal seeks to challenge the 1997 ZBA Determination. In addressing the Tuthill Association's 1997 appeal of the Sellers Determination, the ZBA confirmed that there was a pre-existing food service at the Duryea's. See Ex. 4. Even after the 1997 ZBA Determination issued, the Tuthill Association kept up its harassing challenges to the food service at Duryea's. See Exs. 5 & 6. Now that the Building Department has finally issued the CofO memorializing the 1997 ZBA Determination, the Applicants are attempting to once again challenge that Determination. As the chart in Paragraph 4 7 shows, the Applicants are recycling their same old claims from 1997 again on this Appeal. 56. The Court of Appeals unequivocally has held that the mere issuance of a certificate of occupancy acknowledging a prior substantially similar determination does not create a new determination subject to appeal. See Matter of Palm Mgmt. Corp. v. Goldstein, 8 N.Y.3d 337, 340-41 (2007) (finding ZBA did not have jurisdiction over appeal of a certificate of occupancy that was re-issued with additional detail because new certificate of occupancy did not restart the timing to file an appeal); see also Jane H Concannon Revocable Trust v. Building Dep't of the Town of E. Hampton, No. 4297/2016, 2018 N.Y. Misc. LEXIS 557, at *7 (Sup. Ct. Suffolk Cty. Feb. 5, 2018) (finding issuance of building permits based on certificate of occupancy and site plan approval did not "restart the clock" for petitioner to appeal to the ZBA the certificate or site plan approval, and affirming dismissal of petitioner's appeal to ZBA). #8540116 vi 1026443 10001 14 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 57. The CofO is largely verbatim to the ZBA Determination, though the two do not need to be identical to preclude review of the CofO. Under settled law, the CofO need only be "substantially identical" to the ZBA Determination. See Palm Mgmt., 8 N.Y.3d at 340- 41 (rejecting challenge to new certificate of occupancy that "was unchanged in substance from" but contained "more detail" that prior determinations). Here, there is no material difference between the 1997 ZBA Determination and the current CofO. The Applicants may argue that the CofO additionally refers to a private dining deck. This ministerial difference between the ZBA Determination and the CofO does not open the entire CofO to a new ZBA challenge. Rather, the CofO's recognition of a small pad that has existed on site for decades is just the type of additional detail that the Palm Mgmt. Court held did not subject the entire CofO to challenge. 58. Third, even if the CofO was subject to challenge, the time to challenge it has long since expired. Petitioner first sought the CofO in the Fall of 2017. By no later than December 18, 2017, Petitioner had submitted the necessary paperwork to obtain the CofO. See Ex. 11. Per Town Code, the CofO was deemed issued 30 days thereafter, after the Building Department failed to take action on the request. See Code § 102-16(A)(2). Petitioner filed an Article 78 petition seeking to formalize the CofO on March 5, 2018. See Ex. 12. Accordingly, there was public notice of the January 18, 2018 deemed CofO no later than March 5, 2018, over a year before the Applicants filed the Appeal to the ZBA, well outside the 60-day statute of limitations. See Jane H. Concannon Revocable Trust, 2018 N.Y. Misc. LEXIS 557, at *5-6 (dismissing appeal of issuance of certificate of occupancy when appeal was filed more than 60 days after reasonable notice of certificate's issuance). 59. Fourth, the ZBA is not the correct forum for the Applicants' appeal. Petitioner sought a mandatory CofO from the Building Department based on the Sellers and #8540116 vi 1026443 10001 15 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 ZBA Determinations. When the Building Department failed to meet its obligation to order the CofO, Petitioner filed an Article 78 petition seeking mandamus to compel the Building Department to issue the CofO for Duryea's. See Ex. 12. The Article 78 petition was settled in the Settlement Order by having the Building Department provide the requested relief, issuing the requested CofO. See Ex. 13 at ,i 5. To the extent that the Applicants have a complaint about the Court-ordered CofD, its avenue for relief lies with the Court, not via an end run to the ZBA. 60. No prior request has been made for the relief sought herein. WHEREFORE, Petitioner requests an Order and Judgment under CPLR Article 78 be granted as follows: 1) Issuing a writ of prohibition precluding the ZBA and any of its affiliates, agents, employees and/or others at its direction and/or otherwise under its control from determining or taking any other action on the Appeal; and 2) Granting such other and further relief as this Court may deem just and proper. Dated: New York, New York May 6, 2019 MORRISON COHEN LLP By: Gayle Pollack 909 Third Avenue New York, New York 10022 (212) 735-8600 and THE LAW OFFICES OF MICHAEL G. WALSH 860 Montauk Highway, Unit 4 Water Mill, New York 11976 Attorneys for Petitioner Sunrise Tuthill L LLC #8540116 vi 1026443 10001 16 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 VERIFICATION STATE OF NEW YORK ) )ss: COUNTY OF NEW YORK ) Marc Rowan being duly sworn, deposes and says: 1. That I am the Manager/Member of the Plaintiff, Sunrise Tuthill I, LLC. 2. That I have read the foregoing Verified Petition and know the contents thereof; that the same is true to my knowledge, except as to those matters stated to be alleged upon information and belief, and that as to those matters, I believe the1"~ - ~ Marc Rowan, as Manager/Member of Sunrise Tuthill I, LLC Sworn to me before this __f__ day of May, 2019 ELIZABETH IRENE Notary Public, State of New'ltlllc No. 01IA6224637 Ouallfted In New York County .., '2.- Commissloo Expires Sept. 04, 20.!:'.'... FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 EXHIBIT 1 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 0 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 BUILDING DEPARTMENT TOWN OF EAST HAMPTON 300 Pantigo Place - Suite 104 East Hampton, N. Y., 11937 FREDERICK E. SEUERS Chief Building Inspector April 30, 1997 MEMORANDUM TO: Patricia Mansir, Chair, Planning Board I FROM: Frederick E. Se/krs, Chief Building Inspe<:10~£/ REC...9'.IED RE: Duryea Project APR 3 0·1997 Premises situate: Tuthill Road, Montauk T. M. 3~16-1-8.1, 8.2, 8.6 &: 8.7 PLANrJiNG 80AAD In response to your memo ofApril 18, 1997, please be advised that I made a complete inspection ofthe structures on the above-referenced parcel, this date, to establish the existing uses. Attached you will find a plan showing the structures and the existing uses. Based on Code definitions and descriptions, I find the following uses existi~g: I I) Ice Manufacturing and Storage °'se (Area "A" on Plan). 2) Wholesale and Retail Sales Use (Area "B" on Plan). 3) Office Use - for operation of existing businesses (Area •c• on Plan). 4) Fish Processing Use (Fin and Shellfish), including live storage ofproduct (Areas "D" and "E" on Plan). 5) Fish Market Use - Showcases, c Junrers, Icing Areas and Refrigeration (Area "F" on Plan. 6) I Restaurant Use, including DininKj Area, Prep Area, Kitchen, Steam Room and Restrooms, and Display Area (Area "G" on Plan). Wood decking, used in conjunction with Restaurant, was constructed over existing concrete-area (Area "H" on Plan). 7) I Residential Use (Frame Dwelling) (Area "I" on Plan). I 8) Accessory Use (Frame Garage used for Truck Repair and Storage (repair of business vehicles only) (Area "J" on Plan). I have reviewed many photos, newspaper articles, account ledgers, shipping orders and receipts showing that the above uses existed prior to Zoning. Federal Income Tax Returns were also made available to me as additional proof ofpre-existing use, which I have not reviewed at this time. Based on the information presented to me, and an inspection of the property, I believe that the said property would be classified as a Pre-Existing "Multiple Business" Complex. FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 --- ---- .. . -> or c.,_ . • 0 N °" •4'o' 1,4•• y/ 'Z-"1,.... ,¥"" //J /I ••-"o• NI "' -, 14-e_ ,, -\~. O'!, i ~-- i!J t,J 4 ~• o-,• S6o • ,~ ..... ·, •I ~t "J; ......,"' ., •C S.<..6•oo•otYW r ._(I 1, ,.. V l f/., , o' "' -"' I : FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 EXHIBIT 2 FILED: SUFFOLK COUNTY CLERK 04/12/2023 04:14 PM INDEX NO. 001152/2018 NYSCEF DOC. NO. 175 RECEIVED NYSCEF: 04/12/2023 Appeal to Zoning Board of Appeals Town of East Hampton, New York The Tuthill Road Association (the "Association") and three of its individual members (the "Individual Appellants") hereby appeal, to the Zoning Board of Appeals (the "ZBA") of the Town of East Hampton, the determination, dated April 30, 1997, of the Town's