Confusion on Expansion

       The East Hampton Town Planning Board held a public hearing on Feb. 5 on the proposed expansion of a retail building on Montauk Highway even though the discussion and the legal notice for the hearing were based on an apparent misunderstanding of what was involved.

       The proposal is to merge the lots at 24 and 26 Montauk Highway and to expand a 3,266-square-foot structure on the western one, which would become the eastern headquarters of Saunders and Associates, a real estate firm. The property is opposite Baiting Hollow Road and west of the Exxon station on the highway.

       Eric Brown, an attorney with Ackerman, O’Brien, Pachman and Brown, has met several times with the board about the proposed site plan, which would result in a property a little over 33,000 square feet, with the eastern half used for parking. Both parcels are in a limited business district, which limits commercial space to 2,000 square feet. The existing, considerably larger structure is legal because it predates that zoning.

       In earlier discussions, the board had been apprised of a memo from Kathryn Santiago, its previous attorney, in which she said the “applicant proposed to transfer the 2,000 square feet of commercial space from the vacant (eastern) parcel to the existing building.” The result would be a two-story, 5,266-square-foot structure. 

       In addition to a site plan, there were two apparent issues: whether a transfer of square footage, an apparent first, was acceptable — Ms. Santiago had called it a “density transfer from the adjoining lot — and, second, whether adding 2,000 square feet to the existing structure would constitute an illegal expansion of a nonconforming use.

       The notice for the public hearing was sent out in early January. However, by that time, Elizabeth Vail had become the town’s new  top attorney. She had a different view the matter, saying it was for Tom Preiato, the town’s chief building inspector, to determine the legality of such an expansion. Mr. Preiato said last Friday that he had drafted a preliminary memo, citing different, and inconsistent, sections of the town code, but had come to the conclusion, as Ms. Santiago had, that the expansion was legally acceptable.

       He pointed out that although one of the sections of the code limits new construction in a limited business district to 2,000 square feet, another section states that the “limitations and requirements set forth in the town code shall not apply to legally pre-existing commercial structures within the limited business overlay district that are converted to another commercial use.”

       This led to a good deal of confusion when it came time to hold the public hearing. Reed Jones, the board’s chair, turned to John Jilnicki, who is now the planning board’s attorney, for advice.

       “We’re okay to proceed?” Mr. Jones asked.

       “I am confused,” Ian Calder-Piedmonte, a member of the board, said, seeming to speak for several other board members. “There isn’t a 2,000-square-foot cap? Didn’t we ask them to scale it back?” he asked. In fact, the applicant had already agreed to reduce the size of the expansion from 2,500 to 2,000 square feet.

       “There appears to be an inconsistency in the town code,” Mr. Jilnicki told the board. “It appears there may not be any limit,” he said about the possible size of an expansion.

       The board agreed to go ahead with the hearing, but to keep it open afterward to allow Mr. Preiato to present his formal determination. However, Mr. Jilnicki cautioned that the applicant would be limited in the expansion to the size in the legal notice, that is, 2,000 square feet. If the applicant wants to exceed that size, he said, it would have to revisit the board with a new site plan.

       Mr. Reed opened the hearing. Only one person spoke, that being Mr. Brown. “We intend to pursue the project as proposed,” he said. “The applicant instructed us to be cooperative.” He apologized for any confusion that might have been created. “This is not a density transfer,” he said.