Appellate Division Upholds Supreme Court’s Determination on Breakers Motel, East Hampton
December 14, 2020
In 2018, this Blog published “Challenge to Montauk’s Motel Restaurant Fails at Supreme Court Level” discussing the Article 78 petition and plenary action entitled Jane H. Concannon Revocable Trust v. The Building Department of the Town of East Hampton, Town of East Hampton Zoning Board of Appels, and Breakers Motel, Inc., Index No. 4297/2016, dated February 5, 2018. In this case, the neighboring property owner appealed the Town of East Hampton’s Zoning Board of Appeal’s determination to the Supreme Court. At issue was the neighbor’s appeal of a building permit to the Zoning Board of Appeals issued for the renovation of a restaurant to operate at the Breaker’s Motel in Montauk. The Zoning Board’s determination dated April 5, 2016, denied the application as untimely finding that the applicant had constructive notice of the presence of the restaurant use on the Breakers’ property at the time of the 2010 site plan application and subsequent hearing. The Supreme Court held that the Breakers Motel restaurant use was legal, even under the new Resort District (RS) zoning, and did not require a special permit to be maintained or altered. The Court denied the request for the permanent injunction requested to enjoin the Breakers from taking any further action to construct or operate a restaurant on site and dismissed the proceeding.
By decision dated, December 2, 2020, the Appellate Division, Second Department affirmed the Supreme Court in Jane H. Concannon Revocable Trust, v. Building Department of the Town of East Hampton et al. Reminding us again of the great deference afforded to local zoning board determinations, the Court stated,
“[h]ere the ZBA’s determination that the plaintiff/petitioner had constructive notice of the restaurant use at the premises by 2010, at the time of the site plan application and the hearing on that application, was rational and not arbitrary and capricious. Under the circumstances, the plaintiff/petitioner’s challenges to the 2005 CO and the building permit, which was predicated on the 2005 CO, were untimely (see Matter of Palm Mgt. Corp. v Goldstein, 8 NY3d 337, 341; Matter of Peehl v Village of Cold Spring, 129 AD3d 844, 845).
Furthermore, in light of the dismissal of the CPLR article 78 causes of action on the ground of untimeliness, the plaintiff/petitioner could not demonstrate a likelihood of success on the merits with respect to its claims that the inclusion of the restaurant use on the 2005 CO and the issuance of the building permit were improper in the absence of a special permit. Therefore, we agree with the Supreme Court’s determination denying the plaintiff/petitioner’s motion for a preliminary injunction, and dismissing the cause of action for a permanent injunction (see Parolisi v Slavin, 98 AD3d 488; see also Matter of Figueroa v Maguire, 37 AD3d 829, 832).”
The Court further denied a cross motion made by the Breakers Motel, Inc., to dismiss the appeal from an order and judgment of the Supreme Court.