There is seemingly only one obstacle remaining between Michael Davis and his Wainscott Wombles development on the corner of Montauk Highway and Sayre’s Path, but that last obstacle may be impassable, at least according to David Eagan, an attorney for the Concerned Citizens of Wainscott and a neighbor, who is challenging the right of Mr. Davis to proceed with his plans to tear down the building there and construct a similarly-sized one with a garage, small house, and parking spaces behind it.
Concerned Citizens of Wainscott are appealing a June 2, 2011, determination by the town’s senior building inspector, Tom Preiato, that allows Mr. Davis to build a 600-square-foot house and garage on a commercially used parcel. The East Hampton Town Zoning Board of Appeals will hold a hearing on the matter on Tuesday at 7:30 p.m.
Mr. Davis named it Wombles after a fictional character from his childhood.
“Wombles were created by author Elisabeth Beresford, originally appearing in a series of children’s novels,” he said in an e-mail. The alliterative sound of Wainscott Wombles along with the image of these little gnome-like characters cleaning up Wainscott appealed to him, hence the name.
The approximately 13,000-square-foot property is on the south side of Montauk Highway in Wainscott and is zoned for residential use, but because it had been used commercially before current zoning went into effect, it is exempt from some residential restrictions. It was on this basis that Mr. Davis applied for and was granted a “dual use” certificate of occupancy by Mr. Preiato.
The 1,300-square-foot building on the property now was originally constructed in the 1960s as a diner. It sits toward the rear of the property with a white gravel parking area taking up much of the front of the parcel.
The house Mr. Davis plans to build necessitates the dual use certificate, according to the presentation made by Mr. Davis’s attorney, Denise Schoen, of Tarbet, Lester and Jones, during a hearing for site plan approval in front of the East Hampton Town Planning Board on Dec. 7. Mrs. Schoen told the board, which later approved the site plan, that there were at least 17 other examples of dual usage certificates of occupancy in the Town of East Hampton. The Planning Department countered that these examples were not apropos.
Mr. Eagan said this week that Mr. Davis’s arguments in favor of the dual use certificate are just so much fictional fluff.
In 1975, he said, the then-owners of the property applied to the East Hampton Town Zoning Board of Appeals for a use variance to change the building from a diner to an antiques store and a real estate office and to expand the building by about 20 linear feet. The zoning board granted the request.
“The legal effect of the use variance in 1975 was to terminate the pre-existing, nonconforming diner use,” Mr. Eagan said on Monday.
“Under New York State law,” he said, “a use variance is not considered to be pre-existing or nonconforming. It is considered a permitted use.” Meaning, Mr. Eagan said, that a house can be built on the property using current zoning, or a business can be built applying the variance, but not both.
Mr. Eagan explained that the zoning board, which has to be modeled on New York State law, can hear two types of appeals. One is the traditional request for variances from property line setbacks.
“The second,” Mr. Eagan said, “is a use variance.” Such a use variance is extremely rare, Mr. Eagan said, requiring proof that without the variance the property is not economically viable. “This may be the only use variance that exists in East Hampton,” he claimed.
If you depart from the strict rules of the variance, Mr. Eagan said, you have to revert to the current zoning code for the property.
Ms. Schoen does not agree with Mr. Eagan’s interpretation. “Here’s the missing link,” she said about his argument, “there is no New York State case law that says that says once you get a use variance you’re stuck with it.”
The hearing on Tuesday in front of the zoning board is to determine the merits of Mr. Eagan’s appeal and not the merits of the project itself.
“We are not making any type of decision on the merits of the project, only on the determination of the building inspector,” Alex Walter, the board’s chairman, said.
Whichever way the board rules, Mr. Eagan believes the matter will end up in court. For his part, Mr. Eagan said, referring to the certificate of occupancy issued by Mr. Preiato, “This is never going to survive judicial scrutiny.” Mr. Eagan then allowed that if he were Mr. Davis, he would probably take the matter to court if the board ruled against him.
“There’s two sides to every argument. I genuinely believe this is the correct interpretation. In my mind the code interpretation is not a stretch at all,” Ms. Schoen said, adding that Mr. Eagan was arguing for a broad interpretation. “Ours is code-based.”
Ms. Schoen’s partner, Jonathan Tarbet added, “If he wants that changed he should talk to the town board or run for office.”