On September 10, 2013, the Town of Southampton adopted a Resolution authorizing the “acquisition” of the ever popular and quite infamous Neptune Beach Club (referred to by partygoers as “Neptunes”) located on Dune Road in Hampton Bays. The source of funding for the acquisition is the Community Preservation Fund (“CPF”) established in 1998 and adopted by Southampton Town Local Law 22-1998. The purpose of the CPF is to acquire interests or rights in real property for the purpose of open space preservation and according to the legislation, acquisition is to be accomplished in “cooperation” with willing sellers. The two questions on my mind are (1) whether community preservation funds can now be included as yet another means to effectuate a “taking” or “eminent domain” proceeding in a friendlier and more efficient manner? and (2) whether uses which present noise, crowds, noxious odors and the like, uses which we commonly refer to as “nuisances”- can now simply be abated by friendly purchase using community preservation funds?
I recently attended a two day continuing education series held at Touro Law Center wherein I was quite surprised at how broadly the Fifth and Fourteenth Amendments “takings” analysis is construed. Outside of the generally acknowledged line of takings cases such as Penn Central, Kelo and the recently decided Koontz case, the panel discussions, which included Anthony S. Guardino, Esq., a partner in the Land Use Group at Farrell Fritz, enlightened its attendees with many examples of government actions, which to my surprise, were the subject of takings claims, including the imposition of unreasonable exactions and overly broad conditions of development levied against landowners.
On the heels of my newly found knowledge with respect to taking and eminent domain law, I learned that a very local and iconic beach bar named Neptunes was up for purchase by the Town of Southampton. For many years, Neptunes has been the bane of many a nearby Dune Road resident’s existence. The Town of Southampton acknowledges that Neptunes poses a “real concern to the local community” and that acquiring the ocean front property will provide the “ancillary benefit of eliminating a nuisance establishment.” Likewise, as a prerequisite to purchase by way of the CPF, the property was declared by the Town of Southampton as a “land of shimmering waters, expansive salt hay meadows . . . of paramount importance to birds, especially wintering waterfowl and migratory raptors, songbirds and shorebirds treaveling along the Atlantic Flyway.” Clearly from the Town’s perspective, preservation of the land upon which Neptunes sits is environmentally valuable.
Given Neptune’s location on Dune Road, one would probably be hard-pressed to disagree with the Town of Southampton that Neptunes is located in an environmentally sensitive area wherein use of the CPF to purchase properties is wholly appropriate. However, my question is whether the availablity of community preservation funds provides an additional source of revenue for municipalites to look to when less desirable properties or uses exist in a Town, Village or City. Should property owners be cautious or concerned that a less desirable use can be “taken” away by purchase? Likewise, does the purchase of Neptunes signal a change regarding government’s role in private business? News 12 reports that if the sale occurs, the Town may seek to develop the property into an upscale restuarant? Is the operation of an upscale restaurant government business or government doing private business? It was interesting to learn that some years ago, the Town of Southampton also acquired Neptunes neighboring beach bar, Summers. Today, the site where Summers bandied away every weekend, is occupied by a Southampton Town-owned recreational facility.
Perhaps the purchase of Neptune Beach Club does not signal the change of government business in any way. However, given that the entirety of Dune Road could arguably be deemed environmentally sensitive, the purchase of Neptunes certanly begs the question of whether the availability of community preservation funds provides municipalities with additional sources of funding to acquire uses that are simply not so desirable, at least to some!