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Ross School’s Tennis Courts At Heart Of ZBA Debate

Originally Posted: June 26, 2008

Aaron Boyd

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The Ross School plans to build new athletic facilities for their students. The school will clear a large forested area, pending resolution of an appeal before the Zoning Board. Photos by Aaron Boyd.

East Hampton - First, there were environmental issues, and then there were traffic concerns. Now, as the Ross School begins to clear space in anticipation of commencing construction on its new athletic facilities, the new wrinkle in their expansion plan centers around the tennis courts.

The East Hampton Indoor Tennis Club's Managing Member,
Scott Rubenstein tried to halt construction of the new athletic
Rubenstein argued the proposed tennis courts are a
zoning violation.

The East Hampton Indoor Tennis Club manager Scott Rubenstein appealed to the Zoning Board on Tuesday, June 24, arguing against Chief Building Inspector Donald Sharkey's decision to not label the new athletic fields a "major recreational facility," thereby skirting a technicality which would dictate a similar set of standards Rubenstein had to meet in expanding his tennis club. Sharkey's opinion was based on the primary use of the fields, which are for students during school hours.

Rubenstein sees ulterior motives behind the Ross School's expansion plans. To him it looks like another tennis business is moving into a district where it's not supposed to be allowed.

On The One Hand
Attorney David Eagan, speaking on behalf of the Tennis Club, tried to convince the four board members (Cathy O'Braoin abstained for personal reasons) that the Ross School was attempting to run a "commercial tennis business" that would conflict with the area's residential zoning. Eagan cited an IRS tax code that specifically defines a tennis club run by a school as an "unrelated business," separate from regular education use.

The East Hampton Town Code (definitional section 255-1-20) separates a tennis business into one of two categories, either as a tennis club or a major recreational facility. The code defines a tennis club as "non-enclosed outdoor tennis courts," an important distinction as the Ross School facilities will be enclosed while in use during the school year. According to Eagan, the new courts should be zoned as major recreational facilities that are expressly prohibited in the school's A5 zoning district.

George Biondo, attorney for the Ross School, defended the
"public character" of the private school. As a founding trustee of
the school, Biondo asserted the school's dedication to education,
not business.

"Can you have an indoor tennis court? No. Can you have it as an accessory structure to the school? Yes, but you can't open it to the public as a business unless you're zoned as a Recreational Overlay District," Rubenstein, whose tennis club does carry that distinction, clarified in an interview. "There are things that schools do, selling tennis isn't one of them."

The style of court is further evidence for Rubenstein's claim. The new tennis courts will be clay, instead of the more common hard-tru courts. "Everyone is on hard court," said Rubenstein, who says that all high school programs, straight on through college, practice and compete on hard courts. The clay courts the Ross School plans to install would give their students an advantage in home games, but their unfamiliarity with hard courts will hurt them when playing away.

"Clay courts have only one purpose," according to Rubenstein, attracting older tennis players who prefer less impact and strain on their knees and joints. To him it looks like a good business decision, rather than one made in the students' best interests.

On The Other Hand
The Ross School, represented by Attorneys Richard Hammer and George Biondo, tried to deny the private business label and discredit the Rubinstein appeal.

Chairman Phil Gamble tried to keep the process moving forward as the
appeal continued late into the evening. The meeting, slated for 20
minutes, lasted almost two hours.

Hammer began by separating legal and accounting distinctions. "They tried to blindly import IRS tax code into zoning law," Hammer said, citing a case from 1985, Appelbaum v. Deutsch, that ruled against applying federal tax law in zoning disputes.

The Ross School maintains the new fields fall under 'accessory use' in that they are 'customary, incidental or subordinate' to the primary use of education, a label the town has traditionally applied broadly, according to Hammer.

In a memo to the Building Department on March 5, 2008, Sharkey clarified his position, "If at any time, the athletic facilities at the Ross School are used by the public when school is in session, whether fees are incurred or not, it would then be considered a major recreational facility which would not be permitted in a residential zoning district," he asserted.

Major recreational facilities are private businesses by legal definition, and while the Ross School is private, it enjoys semi-public status under New York state law. Semi-public use describes private institutions with a "public character," Hammer clarified.

Schools "are not businesses, they are the worst businesses in the world," Biondo, a founding trustee of the Ross School and former president of the Montauk school board, countered. "From the beginning we sought to include the community and assist in general education." In his opinion the school is trying to serve the public good, not private business interests.

Attorney Andy Hammer tried to convince the Zoning Board the
Tennis Club had no standing. Hammer issued a motion to
dismiss the case outright.

And The Back Hand
The Ross School also filed a motion to dismiss the East Hampton Indoor Tennis Club's appeal, claiming they have no standing as an aggrieved party in this matter. Wanting to limit competition is not substantive grounds for an appeal.

Countering that assertion, Eagan pointed out any landowner in proximity to the lot in question has the right of appeal and should be granted standing before the board. East Hampton Indoor Tennis Club is presently in negotiations for purchase of a house adjacent to Ross School property to be used as a staff house. "Competitive interest does not qualify standing," Eagan admitted, "but it does not disqualify it either."

According to Hammer, Rubenstein sought to purchase the house on March 20, 2008 in an effort to stop the Ross School expansion. The school had submitted an expansion plan to the town a month earlier. Rubenstein denies any impropriety, citing his plans beginning in November 2007 to add an ice rink and bowling alley to the Tennis Club compound. "We have four staff houses now," Rubenstein said. "You can't do anything around here if you can't house your staff."

The Zoning Board of Appeals granted the Ross School attorney's request for a two-week grace period to review and respond to a memorandum submitted by East Hampton Indoor Tennis and another two weeks for their attorney to respond in kind. In a month's time the board will reconvene to make a determination.

If the board decides in the school's favor "we'll end up in Riverhead Supreme Court," Eagan cautioned. The new fields and courts "will be great for the kids," Rubenstein admitted, "but they should not be able to sell tennis time."

The new fields will be made available to the community at large for a fee.

Related Articles:

Guest (John Crandall) from East Hampton says::
More competition is good for tennis in east hampton. period.
Feb 12, 2011 3:44 am

Guest (scott rubenstein) from east hampton,ny says::
thank you again for taking the time to track me down and to write an article that was clear and accurate as to both of our positions on this issue.
Jun 26, 2008 2:29 pm


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