In the second of two challenges the East Hampton Town Zoning Board of Appeals heard Tuesday to recent rulings by the town’s senior building inspector, Tom Preiato, a group of Amagansett neighbors took on his decision to reinstate a building permit that he himself had rescinded for construction of a woodworking shop on Abraham’s Path.
A 2008 certificate of occupancy issued by the former chief building inspector, the late Don Sharkey, determined that a barn on the site had been used continuously since 1957 as a business. Even though such a use would not be allowed under current residential zoning, he decided it pre-existed those regulations and could continue in its nonconforming status.
In November 2010, Mr. Preiato issued a building permit to construct a woodworking shop on the property in place of the barn, but last August, he rescinded that permit after John L. Ciarelli, a lawyer for several neighbors, argued that the building was not entitled to pre-existing nonconforming status, as there was no evidence that it had actually been used continuously as a business.
In his letter rescinding the permit, however, Mr. Preiato did not refer to continuous usage. Instead, he said that the site is not entitled to dual usage, answering an argument that no one had made. Then on Nov. 3, Mr. Preiato reversed that decision after an attorney for Ronald Webb, who has an option to buy the property, argued that dual usage should be allowed.
“We feel very clearly that this is a mistake in fact, or misrepresentation,” Mr. Ciarelli of Ciarelli and Dempsey said, telling the board that there was no history of continuous use of the barn for business purposes. He pointed out to the board that it had referred to the building in a 1972 decision as a barn. He argued that the town code required the head building inspector to revoke a certificate of occupancy when it is issued in error, no matter when the error is discovered. The 2008 certificate of occupancy was the basis for allowing the 2010 building permit.
“I don’t know why they got this building permit. I don’t know why they got this certificate of occupancy. The building inspector needs to correct it,” Mr. Ciarelli said.
Several of the neighbors spoke as well.
Marion Suter, a neighbor seeking to overturn the building permit, told the board she had purchased her adjacent property on Schellinger Road 19 years ago and had known the previous owner. “Mrs. Ryan was always very friendly to me,” she said, adding that she had been on the property many times, and that the barn had always been dilapidated and unused, except for occasional storage.
Randy Hudson, another neighbor, said that there was no electricity in the barn.
When Don Cirillo, a board member, asked him, “To the best of your knowledge, was there ever a woodworking shop there?” Mr. Hudson answered, “Well, if you want to work with hand tools, but I never saw any activity of any type.”
Ms. Schoen’s partner Jonathan Tarbet, also of Tarbet, Lester, and Schoen, represented Mr. Webb and presented the board with 13 affidavits from various individuals, including two who, according to Mr. Tarbet, lived next door to the property, stating that the barn had been in continuous use since 1957 as a work space.
He told the board that it must abide by the 60-day rule, that is, an appeal must be filed within 60 days of a determination, and that the 2010 building permit had not been challenged. The appeal of the certificate of occupancy didn’t occur for 37 months, he said, meaning that the neighbors had lost their right to appeal.
The board questioned Mr. Tarbet, seeking examples showing the barn being used as a business. Mr. Tarbet told the board that Mark Ryan, the owner, had repaired engines, including cars and lawn mowers.
“Is there any evidence that they transacted business there?” Mr. Cirillo asked him. “Is there an actual exchange of payments? We don’t have evidence of that. A tax ID? Anything?”
Mr. Tarbet referred the board to several of the affidavits.
Mr. Ciarelli then returned to the podium and said, “There is no business ID. There is no commercial transaction taking place on a regular basis. If I fix lawn mowers in my backyard, that doesn’t convert my property to commercial use. The standard you’re being asked to adopt is an unworkable standard and is not supported in the law. What we’re hearing here is an angle to get around what the zoning board said in 1972 when they looked at this parcel.”
The board voted to keep the hearing open for two weeks to allow both sides to respond to written documents introduced Tuesday.
The board ended the session by voting on and approving three requests for variances it had heard in public hearings the previous week, all by 5-to-0 votes.
Amedeo and Antonella Gabrielli were granted a variance to build a 280-square-foot swimming pool at a new house on Montauk Highway in Montauk. Vincent and Christine Sama will be able to tear down an old house on Runnymeade Drive in Springs and build a new 1,169-square-foot one, and Northwest Bungalow L.L.C. got permission to replace a one-story, 986-square-foot house on Northwest Landing Road with a two-story, 1,470-square-foot house.