A Suffolk Supreme Court judge has denied a motion by Southold Town to dismiss a lawsuit filed by Brinkmann Hardware Corp. over a building moratorium in Mattituck.
In their motion to dismiss, the town argued that the Brinkmanns “failed to exhaust their administrative remedies” by merely demanding the Planning Board process their application instead of first applying for a variance from the moratorium, according to court documents.
Town attorney Bill Duffy said Thursday that the town’s outside counsel, Arnold & Porter, moved to dismiss the petition on those technical grounds. The motion also alleged that the Brinkmanns failed to pay certain required fees, which the judge described as “moot” since the fees were ultimately paid in January, before the legal motion was filed.
Section 6 of the town’s local law allows anyone suffering “unnecessary hardship” to seek a variance from the temporary moratorium.
In his decision, dated June 22, Judge William G. Ford writes that though exhaustion of administrative remedies is generally required before resorting to Article 78 litigation, the Brinkmanns case fits within an exemption.
“The Court agrees with the Petitioners that to apply for hardship variance under the circumstances presented would be an exercise in futility,” Judge Ford wrote.
The judge also notes that the hardship exemption in the town’s moratorium applies only to issuance of permits applicable to construction and that the Brinkmanns project required other necessary approvals before commencing.
Brinkmann Hardware Corp. filed the Article 78 proceeding last June in response to the moratorium first approved in February 2019.
In their petition, they argue that the moratorium was “designed solely to frustrate and delay” their plans for a 20,000-square-foot hardware store at the corner of Main Road and New Suffolk Avenue.
Town officials have said the moratorium will help the board review new projects in the context of a pending traffic study and adoption of the town’s completed Comprehensive Plan. It spans Main Road between Bay Avenue and Pike Street in Mattituck and does not affect residential permits or public institutions.
The Town Board has scheduled a public hearing on another extension of the moratorium for July 30 at 1 p.m.
Town supervisor Scott Russell declined to comment Thursday, citing pending litigation.
“We respectfully disagree with the Court’s decision and will be pursuing an appeal of the decision,” Mr. Duffy said. The court has also scheduled a conference for July 30.
In a statement Thursday, Hank Brinkmann said his family is “very pleased” with Judge Ford’s decision.
“Our plans are to continue moving forward and exercise our property rights,” he said. “We intend to construct a beautiful building that conforms with the zoning and code that the Town has had on that property for many years.”