At some subsequent unidentified point in time, local merchants began to object to the permits issued for the event. ABC pleads, upon information and belief, that East Hampton Business Alliance President, Sherry Wolfe, wrote a letter to Supervisor Lester opposing "a tent sale under the thin veil of charity" and demanding revocation of the permits. Further, Mariana Van, on behalf of the East Hampton Chamber of Commerce, advised the Town Board that the Chamber was "tired of working to promote local businesses while The Town let in outsiders to reap the benefits." As a result of these complaints Councilperson Knobel began to publicly express his concern that the sale was not being run as a charity event.
In response to these concerns, on June 28, 1996 Evan Cole, ABC's president, wrote a letter to Councilperson Knobel expressing a desire to address any concerns that the Town might have with respect to the Event so that any problems could be resolved amicably. Neither Knobel nor any of the other defendants responded to the letter. Also on June 28, 1996, LBS productions issued a press release stating that a portion of the proceeds of the sale were going to Podell House.
On July 5, 1996, the Town Board passed Resolution # 680 which revoked the permit for the Event on the ground that the Event was being run as a commercial enterprise rather than a charity event and that the land where the sale was to be held was zoned for residential rather than commercial use. Thus, to permit the sale to go forward would be in violation of the Town zoning ordinance.
According to the Amended Complaint, neither ABC nor Children's House, Inc. was given notice of the proposal of Resolution # 680 or an opportunity to respond. Further, the Town Board refused to have any discussion prior to the vote despite the requests of ABC's counsel. Supervisor Lester specifically advised plaintiff's attorney and Cole that the "public input session" would follow the reading and voting on all Town Board resolutions for that day.
ABC further pleads, upon information and belief, that on July 3, 1996, Town Attorney Richard Whelan provided the Town Board with a legal opinion that the plaintiff's sale was, in essence a commercial activity as opposed to a charitable event. Whelan based this conclusion on the fact that the Event was being advertised as a "$ 10 million" sale, only $ 25,000 of which was earmarked for the Podell House. As a result, the Town Attorney concluded that the sale would violate the Town's Zoning regulations which the Board has no authority to waive or vary.
As a result of the passage of Resolution # 680, the plaintiff was forced to cancel the Event and place advertising in local and regional newspapers explaining the cancellation to the public. In its original complaint, ABC alleged six causes of action for violations of its constitutional rights to: (1) free speech under the First Amendment; (2) free expression under Article I, section 8 of the New York State Constitution; (3) due process under the Fifth Amendment; (4) proper enforcement of Chapter 39 of the Town Code; (5) free assembly under the First Amendment; and (6) equal protection under the Fourteenth Amendment. By Memorandum of Decision and Order the Court dismissed the original complaint in its entirety granting leave to replead only the equal protection claim. See ABC Home Furnishings, Inc. v. Town of East Hampton, 947 F. Supp. 635 (E.D.N.Y. 1996).
An Amended Complaint was filed on January 9, 1997 in which ABC claims that the defendants have violated its equal protection rights by "(1) selectively treating ABC compared with other[ entities] similarly situated, and (2) that such selective treatment was based upon impermissible considerations such as the intent to inhibit or punish the exercise of constitutional rights." In support of its claim, ABC alleges that in the past, the Town has granted public gathering permits at the Dune Alpin Farm location to "Auctions by Kensington, Inc." in June 1992 for an automobile sale and "Hampton Classic, Inc." during successive summers prior to 1977 to hold a horse show and sell related merchandise.
In addition, the Town has allegedly granted public gathering permits for exhibits and sales at other residentially zoned sites as follows:
Applicant Location Date
1. Montauk Point Lions Field Aug. 31, 1996 &
Lions Club Montauk Sept. 1, 1996
2. Montauk Chamber Kirk Parking Lot Sept. 7, 1996 &
of Commerce Montauk Sept. 8, 1996
3. Springs Improvement Ashwagh Hall May 25, 1996
4. Montauk Historical Second House Museum July 13, 1996 &
Society Montauk July 14, 1996
5. Montauk Historical Second House Museum Aug. 10, 1996 &
Society Montauk Aug. 11, 1996
6. Linda Koren Amagansett School Dec. 7, 1996
7. Montauk Point Lions Field Sept. 2, 1995 &
Lions Club Montauk Sept. 3, 1995
8. Springs Improvement Ashwagh Hall May 27, 1995 &
Society Springs May 28, 1995
9. Montauk Historical Second House Museum July 15, 1995 &
Society Montauk July 16, 1995
10. Montauk Historical Second House Museum Aug. 12, 1995 &
Society Montauk Aug. 13, 1995
11. Montauk Historical Second House Museum Sept. 9, 1995 &
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