Of Walls, Height, and the Double Dunes

    The Nov. 20 meeting of the East Hampton Town Zoning Board of Appeals, held two days before Thanksgiving, proved anything but a holiday for its members, who sat through a stormy four-hour session, almost all of it devoted to one of the most valuable parcels of land in the United States, at 278 Further Lane in East Hampton.
    The property, formerly owned by Adelaide de Menil and Ted Carpenter, was sold in 2007 along with its neighbor, 260 Further Lane — 40 acres in all — to the real estate mogul Ron Baron for $103 million. In the fall of 2008, he built two parallel walls, about four feet apart, between the ocean and the two parcels. The walls make a 90-degree turn that divides his eastern border from his neighbor, Taya Thurman. The hearing was held to determine whether the walls, which are in an area of dunes and wetlands, are eligible for a natural resources special permit.
    From the beginning, everything about the walls has been controversial.  To begin with, they were built without a building permit.
    According to Brian Matthews of McLachlan and Eagan, attorneys for Mr. Baron and 260A L.L.C., the owner of record, the walls were constructed after several conversations with the then-head building inspector, Don Sharkey. Mr. Matthews told the board the surveyor, David Weaver, had assured Mr. Baron that a permit was not needed, as the walls were to be only four feet high.
    According to Mr. Weaver, who addressed the board through an affidavit, Mr. Sharkey gave a verbal okay to the project in April 2008 and again that August, shortly before construction began.
    Later, Mr. Sharkey, who died in July 2009, denied having given those approvals, and Brian Frank, the town’s chief environmental analyst, said he doubted that he did. Mr. Frank told the board it would be unlikely for a head building inspector to give an approval of that magnitude in such a casual manner. “It doesn’t make any sense that Mr. Sharkey would have just said, ‘Go ahead.’ ”
    More important, said Mr. Frank, was that according to earlier aerial photographs of the site, it appeared that the walls had been built right over dunes, disturbing the rare double dune system. Larry Penny, the former director of the town’s Environmental Protection Department, had made that same point in a letter to Mr. Baron dated June 5, 2007.
    “The double dune preserve is unique,” said Mr. Frank. “There is no place else on Long Island where the entire structure is intact.”
    Mr. Matthews, however, cited surveys and studies made for the owner that indicated that little if any duneland had been impacted.
    Even the height of the walls was disputed. Mr. Matthews assured the board that they were only four feet tall, an assertion scoffed at by Michael G. Walsh, attorney for Ms. Thurman and the Thurman Land Trust.
    “Our findings were radically, radically  different than the findings you’ve been presented this evening,” Mr. Walsh told the Z.B.A. members. He said the actual height of the walls could only be determined by establishing a “natural grade” point, and contended that by that standard the walls were over 13 feet high.
    Mr. Frank agreed. Both men concurred that the walls were built using poured concrete with foundations and rebar and not as simple property demarcations. In fact, said Mr. Walsh, their true purpose was to raise the grade of the land to ensure that any house built there in the future would have a panoramic ocean view. He said the walls should rightly be called retaining walls.
    The lawyer and the environmental analyst both said fill had been dumped between the two walls and behind the back wall, which, Mr. Frank said, has allowed invasive species to move into the duneland. Mr. Matthews countered that the fill was from the immediate property.
    Mr. Frank asked the board, “Would I approve this if it wasn’t there already?”
    “We’re not here to make a determination whether these walls should be taken down,” replied the Z.B.A. chairman, Alex Walter.
    Mr. Frank agreed. “You’re here to determine whether the walls are eligible for a natural resources special permit,” a determination that is likely to be made during the board’s Dec. 11 work session.
    In the evening’s only other proceeding, the board heard Philip Giordano’s application to tear down and rebuild a house at 15 Deforest Road in Montauk.