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Apr 11, 2019 2:25 PMPublication: The Southampton Press

State Court Grants East Hampton A Temporary Stay On Duryea's Lobster Deck Settlement

Duryea's Lobster Deck on Fort Pond Bay in Montauk.      KYRIL BROMLEY
Apr 16, 2019 1:15 PM

A State Supreme Court justice granted East Hampton Town a temporary stay on the stipulations of a previously agreed-to settlement of a lawsuit between the town and the owner of Duryea’s Lobster Deck in Montauk.

Justice David T. Reilly granted a stay of the settlement on April 10, shortly after three Town Board members testified in court that they had not yet approved, or even seen, the actual wording of the settlement that was signed in January by Town Attorney Michael Sendlenski and attorneys for Marc Rowan, the billionaire investor who owns the iconic Montauk eatery.

The ruling by Justice Reilly came in response to a town request the day prior that the judge vacate the settlement entirely, which he has said he will take more time to consider following the testimony in court by the Town Board members, Mr. Sendlenski and Building Inspector Ann Glennon.

Michael G. Walsh, the attorney who filed the three lawsuits for Mr. Rowan that were the subject of the settlement agreement, said that testimony by Mr. Sendlenski last Wednesday contradicted that given by Town Supervisor Peter Van Scoyoc, Councilwoman Sylvia Overby and Councilman Jeff Bragman, who all said that they had not given Mr. Sendlenski authorization to sign the settlement agreement when they discussed the case with him during two closed-door meetings in December and January.

Mr. Van Scoyoc said on Thursday, April 11, that for the town to officially agree to the settlement, the board would typically hold a vote on a resolution to authorize the supervisor or the town attorney to sign the settlement.

“These things are always negotiated in executive session and not in public, for obvious reasons, but the board feels that we hadn’t concluded those discussions, and that it was premature to be signing this settlement,” Mr. Van Scoyoc—who had defended the settlement when it was first made public and said the board was not required to vote on it—said on Thursday. “In most cases, we would have taken a public vote on any such stipulation. The town has to take some formal action.”

He said the town welcomed the ruling by Justice Reilly and hopes he will ultimately set aside the signed agreement completely, so that the Town Board has more time to consider the details of the stipulations it agrees to. He said that a settlement between the parties is still a possibility.

“While there were some aspects of the settlement that we felt were favorable, I don’t think any of us felt we were ready to move forward yet,” Mr. Van Scoyoc said.

The settlement had dismissed several zoning violations against the property, abandoned the town’s right to demand permits for the waterfront portions of the property, and gave Mr. Rowan’s company the right to operate the restaurant as it has since 2015 while it applies for permission to formalize the restaurant use.

In exchange, the owners had pledged to install a costly nitrogen-reducing waste treatment system and to ban the potential use of the sturdy pier by cruise ships or ferries—two points of particular concern from Montauk residents when Mr. Rowan, whose hedge fund owned a share of Norwegian Cruise Lines at the time, bought the property for $6.3 million in 2014.

The settlement also ordered Ms. Glennon to issue a certificate of occupancy to the property for the existing uses, even though they have been poorly defined.

The certificate of occupancy declared the property to contain a wholesale ice house, two retail stores, a wholesale and retail fish market, and an “outdoor area for the consumption of food,” which were acknowledged by the town’s Zoning Board of Appeals in 1997 but were never codified in a certificate of occupancy.

Ms. Glennon issued the certificate last month, but made clear in court last Wednesday that she’d had substantial reservations in doing so. She has already rescinded the building permit on the basis that it had been issued only in accordance with the now disputed settlement. But Mr. Rowan’s attorneys immediately filed an appeal to the town ZBA, asking the board to order that the certificate of occupancy be left intact.

When details of the settlement were made public in February, neighbors and policy hawks had blasted the board over the stipulations, which seemed to grant Mr. Rowan permission to use a residentially zoned portion of the property to add parking and to install a waste treatment system, and allowed the current arrangement of the restaurant portion to continue while the Planning Board reviewed a new site plan application for the property.

Neighbors said that the settlement essentially absolved Mr. Rowan’s representatives of wrongdoing in what they say has been a substantial expansion of the use of the restaurant portion of the property from the takeout-style operation with informal seating on two small outdoor decks that the Duryea family had offered adjacent to their seafood market for decades.

Since Mr. Rowan took over the property, the areas of deck where seating is allowed have grown, neighbors said, and the takeout window has now essentially become a restaurant. While customers are still generally expected to order their food from the old takeout window, the food is now delivered to the table and staff will take and place orders at the table if customers prefer.

Waiter service is listed in town code as one of the aspects of an official restaurant use, which the Duryea’s property does not currently have permission for.

Mr. Rowan’s attorneys have already filed an application to the Planning Board requesting a special permit to allow a 135-seat, full-service restaurant at the property, but Mr. Walsh said there are not plans to “explode this place.”

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As the sun sets on Sendlenski's career, someone should take a look at ALL of the settlements of stipulation he crafted. Duryea's is not the first time he avoided having to properly prosecute a case by making a deal that allows the defendant to bypass site plan/zoning requirements. And who "told" Glennon she had to give them a CO? Doesn't she have a supervisor?
Oh wait...that's right - she's taking her marching orders from Sendlenski's cohort David Betts. They're so busy crowing about what a ...more
By BonacPlague (11), Gansett on Apr 11, 19 4:55 PM
1 member liked this comment
If not for the due diligence of Councilman Jeff Bragman, the crooked back room dealings of Michael Sendlenski and numerous others would not have been exposed. Circumventing the proper zoning and planning procedures is unacceptable and ILLEGAL. Thank you to all who helped expose this disgraceful back room agreement.
By East End Gent (7), Sag Harbor on Apr 12, 19 4:53 PM
2 members liked this comment