Buckskill Winter Club Wins Case Against Town

Posted on 23 October 2008

It appears as if East Hampton residents will not have to wait for town pond to freeze over before polishing their skates this winter. Late last week, a judge ordered the East Hampton Town Zoning Board of Appeals to issue the Buckskill Winter Club a certificate of occupancy for its ice rink.

In a decision dated October 17, New York State Supreme Court Justice Arthur G. Pitts annulled the zoning board’s determination denying Doug and Kathryn DeGroot’s appeal for a certificate of occupancy for their seasonal ice rink, and ordered the board to issue the document.

According to DeGroot’s attorney, Theodore Sklar, winning the case paves the way for the popular ice rink to reopen this winter after dormancy for the last two years.

“Hopefully we will be skating shortly,” said Sklar. “I know Rockefeller Plaza is already open.”

The town has had an injunction preventing the club from operating during the last two years while the case was being hammered out. The town still does have the ability to appeal the case, although it is the DeGroots’ hope, said Sklar, that it will instead choose to work with the club rather than expend more money fighting the case.

The decision is the latest in what has been a three-year battle between the owners of the Buckskill Winter Club and the Town of East Hampton.

In December of 2004, the town passed a law permitting the construction of seasonal ice rinks on the club’s tennis courts in East Hampton. In mid-December of that year, the DeGroots filed an application with the town to convert four of their tennis courts into an ice rink, which at the time required only a building permit. They opened for their first season in January 2005, albeit without a certificate of occupancy for the ice rink, which would become the crux of the town’s case against the club in years to come.

Following the Buckskill Winter Club’s first season, in response to complaints from a handful of neighbors around the club, the town board passed a new law breaking ice rinks into two tiers for town approval. Seasonal ice rinks like the one already at Buckskill, which exceed 7,200 square feet, require site plan approval, not just a building permit, under that law.

It was during the DeGroots’ second season operating as an ice rink that they were denied a certificate of occupancy by East Hampton’s building inspector Don Sharkey. Without the certificate of occupancy, the Winter Club would not be considered pre-existing, non-conforming to the new town law, meaning the DeGroots would have to go back before the town planning board for site plan approval before they could legally operate.

In a January 2008 hearing of the zoning board of appeals, Sharkey asserted that when he inspected the rink in 2005 for the certificate of occupancy he found items at the club that he said constituted structures that were not covered under the DeGroots’ original building permit. In a 2006 letter to the zoning board, Sharkey listed the items, which included a shed for the Zamboni, a generator, an American with Disabilities Act compliant ramp and the dasher boards with glass backstops.

Following Sharkey’s denial of the certificate of occupancy, and after seeking relief from the zoning board in August of 2006 and being denied in the fall of that year, the DeGroot’s filed suit against the town.

In an October 2007 decision, Justice Pitts ordered the zoning board to re-hear the DeGroots’ case to overturn the denial with him in attendance. Sklar had argued to the court that he was unable to cross-examine Sharkey at the first zoning board hearing as he was not present, only sending correspondence to the board stating his case for refusal. The court also deemed in the cross-examination, the DeGroots should be given the opportunity to find out how they could comply and obtain a certificate of occupancy.

In January of 2008, the zoning board did re-hear the case, with Sharkey cross-examined in front of the board.

At the new hearing, Sharkey continued to maintain he was unaware of the scope of the project the DeGroot’s were planning at the Winter Club – a statement Doug DeGroot contended was false.

Sklar also argued in front of the board that many of the structures cited by Sharkey had since been removed, including a Zamboni shed and generator. The ADA compliant ramp was not removed, and Sklar added that the dasher boards with glass backstops were allowed by the town code under the definition for a playing court, including an ice rink.

Despite the testimony, in February of 2008, the board denied the DeGroot’s appeal for a second time, ruling these aspects of the rink were not included in the original building permit. They did choose to omit the dasher boards and glass, agreeing with Sklar’s interpretation of the town code.

Pitts disagreed with the board, and citing testimony from the zoning board hearing last January, struck down their decision.

In addition to agreeing with the DeGroot’s that the club is in fact a pre-existing, non-conforming entity to the town’s two-tier ice rink law, Pitts noted Sharkey himself admitted at the zoning board hearing that the Zamboni shed and generator had been removed from the property. As the board had already agreed with the DeGroot’s contention that the dasher boards and glass were legal under the town code all that remained on Sharkey’s list of unapproved structures was the ADA-compliant ramp.

Pitts simply points to a question asked by Sklar at the zoning board hearing, and Sharkey’s corresponding answer as evidence the ramp should not be considered an issue in the way of the town granting the club’s certificate of occupancy.

“Well, is there any reason why you couldn’t issue a C.O. for an ice rink that allows disabled people to get on the ice rink,” asked Sklar.

“Of course not,” replied Sharkey.

 

 

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