Enclaves proponents urge ZBA to approve; says community opposition is not ‘substantial evidence’

A memorandum from the attorney representing the Enclaves Hotel and Restaurant proposal has emphasized that community opposition is not enough legal evidence to halt the bid. 

Addressed to the town Zoning Board of Appeals, the Nov. 1 memorandum outlines the applicant’s response to a contentious Oct. 14 public hearing that dragged on for nearly four hours in a packed Town Hall. 

“Opposition to the SEP [special exception permit application] consisted of personal anecdotal testimony, speculation and conjecture and, in certain instances, conspiracy theory, wholly unsupported by expert documentation, sound empiric evidence or the record before this Board,” the memorandum says. “The law in New York is well-settled that generalized community concern, unsupported by expert documentation, is insufficient as a matter of law.”

“Those opposed to the SEP proferred nothing more than visceral anecdotal testimony, based solely on personal concern, without any offer of expert documentation or empiric data,” the memorandum says. “This Board is well aware that review of the SEP under the State Environmental Quality Review [Act] lasted more than four years and in that time those opposed to the SEP did not offer into the record any expert documentation. Simply because certain vocal residents do not like [the application] is, in and of itself, insufficient to deny the SEP.”

The memorandum also argues that “unsubstantiated traffic concerns cannot serve as a basis to deny” the application. Several residents expressed concern about congestion at the hearing, arguing that the traffic study included in the Final Environmental Impact Statement was conducted in 2018 and doesn’t account for the influx of people to the North Fork after the pandemic outbreak. 

“Opposition testimony at the SEP Hearing consists of nothing more than generalized, unsupported, concerns regarding traffic and compatibility with the neighboring community and, as such, does not constitute substantial evidence,” the memorandum says. 

Consultants maintained at the hearing that traffic would not be significantly affected and pointed out that a gap study was conducted in October 2020.

The memorandum also emphasizes that “a resort hotel is a specially permitted use in the hamlet business district;” that the ZBA’s “findings statement constitutes a sufficient ‘hard look’ that this hotel project meets the SEP criteria under the Southold Zoning Ordinance;” and that “ ‘small events’ are a permitted accessory use at a resort hotel and [the ZBA’s] independent consultant determined that mitigation efforts are not required.”

Citing the SEQRA handbook, the memorandum says the ZBA’s positive findings statement “means that, after consideration of the final EIS, the project or action can be approved, and the action chosen is the one that minimizes or avoids environmental impacts to the maximum extent practicable.”

It further points out that the ZBA expressed concern about the frequency of small events at the Enclaves Hotel for the first time in its findings statement.

“Since this Board and its independent consultants did not find that ‘small events’ have an adverse impact and the Applicant testified at the SEP hearing that events will be accessory to the hotel use, the imposition of additional conditions restricting or otherwise limiting ‘small events’ constitutes an impermissible regulation of business activity through zoning,” the memorandum says, adding that imposing conditions without “a rational basis in the record based on fact and empiric data” would be a violation of town law.

At the Oct. 14 hearing, attorney David Altman — whose firm, Brown Altman & DiLeo, LLP, submitted the memorandum — emphasized that the application is variance-free and hinges on approval of a special exception use permit. 

“That’s rather important, because it shows careful consideration by the applicant, I believe, in terms of the thoughtfulness and development of this project, particularly in conjunction with comments from this board and, again, comments from the public,” he said at the time.

Andrew Giambertone, an architect and partner on the project, addressed specific community concerns and thanked the ZBA for allowing him to present at the hearing in an Oct. 29 letter accompanying the memorandum. 

He said the hotel plans to contact the board at Founders Landing to potentially negotiate a way for hotel guests to use the beach. “If it is the desire of the Founders Landing Association to prohibit use [of] the beach by hotel guests, then, we will respect their wishes,” he added.

He said there have been “extensive and costly noise attenuation factors” made to the development project and highlighted the venture’s financial viability. 

“We embarked upon this project only after having done several feasibility studies, all of which indicated that this project is financially sound. Even with a 50% occupancy rate we can sustain the viability of this development project,” he said. 

Large events, he added, are meant to help offset the anticipated business dropoff in the off-season and the development is unlikely to compete with local bed-and-breakfast establishments.

“Respectfully, we believe the opposite to be true, that spill over from this hotel project will help boost the occupancy [of] B&B’s, in particular when the hotel is fully occupied for some of the events at the hotel,” he said. 

A basement-level guest spa was limited to hotel guests only at the ZBA’s insistence and an indoor 250-person event space was added in response to comments from the ZBA and public to mitigate noise concerns, according to Mr. Giambertone.

“Although I did not appreciate the tenor of some of the residents’ comments rendered at the hearing, I do appreciate where they are coming from, and the fact that they are largely based upon fear of the unknown,” he said. “Unfortunately, most of that fear was generated by misinformation, speculation and a conscious desire to ignore the extensive factual findings, expert testimony and expert studies contained in the record before this board.”

He pointed to North Fork Table & Inn — owned by his partner in the Enclaves proposal, Jonathan Tibbett — as an example of a prior business success and emphasized that the investing group includes several local multi-generational companies with a “sincere passion” for the community. 

“The analysis and scrutiny that the Enclaves Hotel project was subject to sets a very high bar for future projects in Southold,” he said. “Imagine if some of the nuisance establishments cited by the opposition at the hearing had been subject to the same level of scrutiny, required the same extensive and costly mitigation measures as this project? We respectfully ask this board to look beyond the conjecture, fear, speculation and raw emotion and consider the evidence and facts.”