Dan's Papers - March 7, 2008 - The Buck Stops Here

Every day in towns and villages around the Hamptons, the rich and the poor, the billionaires and the blue-collar workers, meet the same justice when they face our various Zoning Appeals Boards.

As an example, here are two cases in the Dan's Papers files from the hearings of the East Hampton Village Zoning Appeals Board that took place last Friday. One involves a case on West End Avenue, perhaps the most exclusive address in the Hamptons. The other involves a case on Maidstone Avenue, a more modest street where locals live.

The first case was about a very large pergola, 11-feet tall, 32-feet long and 16-feet wide, already built in the garden of a tony estate on West End Avenue just beyond the end of Lily Pond Lane. Built late in 2006, it is fronted by Greek columns, has latticework along the sides, an open trellis on the roof and more latticework along the back. It hasn't got a floor. And it sits right at the property line of the owner of this land, Norma Lerner.

Two years ago, this pergola was not there. But Lerner wanted it there. And so, back in December of 2006, she hired a man, Don Sharkey, who is one of the building inspectors for the Town of East Hampton, to arrange the paperwork so she could be allowed to build one on that spot. Keep in mind that Lerner is in the Village of East Hampton, a small incorporated village that is entirely surrounded by and separate from the Town of East Hampton, which has no jurisdiction in the Village.

Sharkey wrote a letter to the Village Building Inspector of East Hampton Village, his counterpart, asking to apply for a building permit. The Village Building Inspector, Tom Lawrence, wrote back that one would not be necessary. The reason, according to Lawrence, was because you can't build a building on the property line. But you could build a fence, for which you would not need a building permit. Lawrence wrote back that he thought this pergola qualified as a fence. With this letter in hand, Lerner had the thing built.

Personally, I wonder how Lawrence could have mistaken an 11-foot high pergola for a fence, which by law can only be allowed six feet high. But he did. From what I'm told, he did have the plans in hand for the pergola.

None of this might have come to the attention of anybody - other than a very puzzled neighbor - except for the fact that Lerner proceeded to install electric lights in the pergola and a sound system so music could emanate from it. And that, finally, is what brought this whole matter to the attention of a whole bunch of neighbors.

What was going on? They called the East Hampton Village Zoning Board to complain about the noise and the lights. The East Hampton Village Zoning Board called Lawrence. And Lawrence called Sharkey, who in turn called Lerner. Sharkey then said he certainly recalled being surprised to learn, when he wrote to Lawrence asking about the permit, that none would be needed.

After that, having given it some thought, Sharkey then did an unusual thing. He wrote a letter to the East Hampton Town Ethics Board, asking if that Board could give him a letter back saying that it was all right with them that he have a separate business - he works full time for the Town - advising people about zoning matters, as long as he did it on his own time and in a jurisdiction that was not in the Town.

The Ethics Board chairman, Hugh King, wrote back saying what he did on weekends and evenings was perfectly okay with them. They had no jurisdiction over that. And lots of full-time Town employees have businesses on the side like that.

What happened next was that Lawrence wrote to the East Hampton Zoning Board of Appeals asking for them to confirm that when he had decided that this pergola was a fence, he had made the correct decision. The Zoning Board said they would take up the matter, and Lawrence said that whatever they decided he would abide by it. Thus this matter came to the attention of the Zoning Board last Friday morning.

It would be hard to imagine the Village Zoning Board of Appeals ruling that this was anything but a building.

I recall Tina Fredericks, the prominent real estate broker, buying a vacant five-acre parcel on Georgica Pond years ago (when it was affordable) so that she could build an open teahouse on the property. She had a house on Georgica Road. She didn't need another one. What she proposed to the Village was that she build an open, raised, wooden deck on posts, with a Japanese roof on the top to shelter her and her friends from the rain. They would go down there and, by lantern light, play cards or sit and talk or just watch the pond. The Village turned her down.

It was a "structure" they told her. And structures need permits. But then she couldn't apply for a permit because as a teahouse it was a particular kind of structure known as an "ancillary structure" that needed to be ancillary to a "main structure." Since the land was vacant, there was no "main structure." So that was that. Today, Fredericks, much more prosperous, lives on that property overlooking the pond in a beautiful stone split-level "main structure." She never did build that teahouse.

Or consider what happened to Jerry Seinfeld in East Hampton Village. In 2004, he came to town and bought the 12-acre oceanfront property owned by Billy Joel and soon thereafter renovated the house on that lot, and then on a nearby vacant part of it built a regulation little league field for his kids. The Village demanded he tear it out. It was an "ancillary structure." And as it turned out, it was on a separate but vacant parcel Seinfeld owned. No main structure there.

In the end, Seinfeld built a "main structure," a modest house in comparison to his own, and then the Village allowed that the ball field could be an "ancillary structure" to the "main structure."

As far as I know, a rule of thumb definition of the law is that if it can be taken down and brought inside for the night, it's okay. Otherwise, it's not okay. You might want to keep that in mind.

In any case, on Friday morning, the Zoning Appeals Board met to consider the matter of Lerner's pergola.

An attorney hired by Lerner, Tina Platte, told the board that traditionally decorative lawn ornaments such as trellises, pergolas and arbors do not require building permits.

Nobody was buying it. Those who spoke said it was a building. When asked by the chairman if there was anyone on the board who felt it was a fence or some other legal non-building, there was no answer. A final vote on this matter will take place on March 28 at 11 a.m. at the Village Emergency Service Building on Cedar Street in East Hampton.

The other matter that the East Hampton Village Zoning Board considered last Friday morning was that of some perceived zoning violations on a house that is still under construction on a narrow street in a more modest part of the Village.

The house being built is on Maidstone Avenue, a harrow street one block long with about 15 houses on it, all in a row. It sits on a 1/8th of an acre building site, replacing an older and more worn down house, and the plans call for it to only exceed the minimum size for a legal house in the community by 300 square feet. The builder, who is new to town and works as a carpenter, is Bradford Roaman. And this was the first house he had ever general contracted. He is building it for his grandmother.

According to the building inspector, Lawrence, the same building inspector who ruled on the pergola over on West End Avenue, this house is being built 7/8ths of an inch closer to the side yard property line than allowed and 1 3/4 inches too close to the front yard property line than allowed. Where the plans show that there should be two steps going down from a back door to the yard, they have built three. And worst of all, when Roaman's framer got to the second floor, instead of following the plans that showed this outside second floor wall should be set back one foot ten inches from the first, he continued framing it straight up. The result was that this upstairs bedroom was 40 square feet bigger than the approved plans called for, which made the whole house 40 square feet bigger than the plans called for.

Indeed, this error is apparently catastrophic.

Because of the small lot size, the maximum number of square feet that was allowable for the entire house was 1,500 and the plans called for them using every last one of these feet. This error meant that the house was now 1,540 square feet. It was too big for its lot.

Furthermore, on a lot of this small size, the maximum number of square feet allowed for ground coverage on the property also just happened to be 1,500. And although the wall on the second floor did not affect this, the additional step at ground level, the extra tiny bit of inches going all the way around and the addition of some heavy stone pavers leading up to the entry doors and set right on the ground now meant that the total footprint was 1,590 square feet. It was time for the members of the board, together with the general public in attendance, to have a go at Roaman.

"Why did you do this?" somebody asked.

"I was not aware that the house was built to just barely fit inside the legal limits."

"You don't know East Hampton," somebody said.

"I was more concerned that I might break the pyramid law (the invisible line forming a pyramid that goes up at an angle and inside of which all the structure must be enclosed). I mean, that's the hot button."

"The Village does not have a pyramid law," the chairman, Andrew Goldstein, said.

Roaman had brought an attorney, Stuyvesant Wainwright, to help him out at the hearing. Wainwright said that really this was just one mistake, with the framing along one wall on the second floor not set back.

"I think I'm being charitable in saying that this is mistake upon mistake upon mistake," Goldstein said. "The house looms."

A letter to the board from Mayor Rickenbacker, who lives with his wife a few doors down on Maidstone Avenue, was read aloud.

"The language and intent of the zoning code of the Village must be upheld and not subject to abrogation by others for personal interpretation, interest or gain," the Mayor wrote.

"At the end of the day, there are so many areas of mistakes that there have to be some corrective measures," said Board Member Larry Hillel.

A local resident, Mary Ella Moeller, spoke about the situation. "If you are building something in the Village, it's your responsibility to know what Village laws are, and this man obviously took advantage of it," she said. "If he thinks he's going to get away with it, it would be a shame."

Goldstein ended by saying that Roaman should go back home and make new plans to show how he could mitigate the situation, which was quite clearly caused by himself.

As I said, billionaire or blue-collar worker, they all meet the same justice when they go before the local Zoning Boards of Appeals.