A building permit for a property on Abraham’s Path in Amagansett that was rescinded, then reinstated, was again rescinded, this time by the East Hampton Town Zoning Board of Appeals. The board voted 5 to 0 on Tuesday night to make the permit issued by the town’s acting chief building inspector, Tom Preiato, null and void, at least for now.
In November 2010, Ronald Webb, who leases the property with an option to buy, received a permit for a new building that would contain both a commercial woodworking shop and a residence and would be the same size and dimensions as a barn on the property. The land is in a residential zone, but such use would be allowed if it could be established that the barn already there had been in continuous use as a business since before the town’s zoning code prohibited a business on the property.
A 2008 certificate of occupancy for the barn, issued by Mr. Preiato’s predecessor, the late chief building inspector Don Sharkey, described the barn as being used for a business. Based on this C of O, Mr. Preiato issued the permit to allow for construction of the new building with its dual uses.
But in August 2011, after an attorney for neighbors argued that the building had not been continuously used as a business, Mr. Preiato rescinded the permit, only to reinstate it a month later, when Mr. Webb’s attorney presented evidence to the contrary. At that point, Mr. Webb began knocking down the old barn and laying a foundation for the new building.
The neighbors challenged Mr. Preiato’s reinstatement of the permit before the zoning board on April 24.
John L. Cirelli, their attorney, argued that Mr. Preiato’s decision was, at best, “based on an an error in fact,” and several neighbors said they had never seen a business operating out of the barn.
Mr. Webb’s attorney Jonathan Tarbet of Tarbet, Lester, and Schoen, presented the board with several affidavits from local residents arguing that the barn had indeed been used as a business.
“Show me a canceled check, a ledger book, anything,” Don Cirillo, a board member, had asked.
Sharon McCobb, another board member, pointed out that the barn wasn’t even wired for electricity.
Mr. Tarbet maintained that even if the opponents’ arguments were accepted, the appeal had not been made within the required 60 days from the date when Mr. Sharkey issued his C of O.
Mr. Cirelli countered that if there had been an error of fact there was no time limit on an appeal; however, Mr. Tarbet said that the 60-day rule for appeals in cases where there was an error of fact involved can be waived only by the town. Such an option is not available to the neighbors, he said, as all development would be under a permanent threat of reversal.
He said last week that his client had moved forward in good faith, expending much time and capital and would have the final word in court, and the final reversal, if the board ignored the 60-day rule.
In the end, the board ruled that Mr. Preiato’s initial reversal of the building permit was the correct action, and that the neighbors had appealed the reinstatement in a timely manner. Therefore, the building is not entitled to be used as both a business and a residence.
The board made it clear that the initial building permit issued by Mr. Preiato was in error, as it was based on a flawed 2008 C of O issued by Mr. Sharkey, but that it did not have standing to reverse that certificate.
“We can’t do anything about overturning an appeal of the C of O because the statute of limitations has run out,” the chairman, Alex Walter, said. “In this case, you have a single structure. We can rule on the building permit that was issued in 2011 because that was a timely appeal.”
However, Robert Connelly, the board’s attorney, said that “Mr. Preiato can at any time reverse an error in fact,” an action that the board made clear it hopes Mr. Preiato takes.
Also on Tuesday, the board held a hearing on Carl Darenberg’s request for a natural resources permit to open a small bar at the Montauk Marine Basin. To be run by Lynn Calvo and called the Hula Hut, the bar will occupy a converted 224-square-foot office trailer. The permit was needed because the bar is to be 102 feet from Lake Montauk, where a distance of 150 feet is required.
The town’s planning board already signed off on the bar, despite some opposition from neighbors, including Robert and Marie Rando, owner of the Montauk Sportsman’s Dock next door.
The Randos were seated in the audience as Mary Whelan, an attorney representing Mr. Darenberg, told the board that there would be no drainage or runoff into the lake, that any food served would be prepared elsewhere, and that drinks and food would be served in disposable plates and cups.
“I have been living with Liars’ Saloon, putting up with the noise and public urination,” Mr. Rando told the zoning board, claiming that the Hula Hut was much less than 100 feet from the water.
While he was speaking, Ms. Calvo could be heard saying, in the audience, “That’s wrong.”
Mr. Walter showed Mr. Rando a survey, then Mr. Rando handed the chairman several photographs illustrating problems with the screening and other issues.
“This has been approved by the planning board. This board’s issue tonight is a natural resources permit. As far as the screening between your property and the Montauk Marine Basin, the planning board is the agency. It is not in this board’s purview to go over what the planning board has already approved,” Mr. Walter said.
“To calm Mr. Rando’s concerns, I will never be open until 4. I will never be open past 11 p.m. I love Montauk Harbor. I don’t want a late-night bar. I hope someday the Randos will come and have a margarita,” Ms. Calvo said.
The board approved the permit 5 to 0 at the end of Tuesday’s session.