Another pre-existing, nonconforming building is drawing fire in the political arena this month. On Dec. 7, a near-capacity crowd came to hear the East Hampton Town Planning Board discuss an application for site-plan approval of Wainscott Wombles, a 14,297-square-foot parcel at the corner of Sayre’s Path and Montauk Highway in Wainscott.
The applicant, Michael Davis, seeks to demolish an existing 1,375-square-foot building and construct a one-story office building for his company, Michael Davis Design & Construction, of the same dimensions, with a full basement. Right next to it, he wants to add eight parking spaces and a new sanitary and water-supply system, and construct a small, 600-square-foot, two-story residence with a first-floor garage. Both buildings would be 24 feet in height. According to the application, the addition is intended as a place for Mr. Davis’s son Zachary, age 18, to live. The lot is a commercial site in a residentially zoned district.
The paper-trail history of the parcel begins with a certificate of occupancy dating to 1969 that allows its use as a diner; modern town zoning laws did not exist at that time. A variance for a change of use was granted in 1975, for an antiques shop, and the last C of O on record was issued in 1976 for a retail structure.
Laurie Wiltshire of Land Planning Services in Wainscott, a representative for Mr. Davis, spoke first. She described the site as, “The beginning of the gateway to our community. It houses a former diner, and the majority of the lot is demarcated gravel, and used cars for sale. There is one overgrown weed there.”
Ms. Wiltshire’s office is located two doors down from the Davis property, and she offered her perspective as a neighbor, on the prevailing aesthetic of the area: “Wainscott is one of the most expensive ZIP codes in the country, but you certainly wouldn’t know it by driving through our downtown.”
Denise Schoen, counsel for Mr. Davis, asserted that the application is within the legal jurisdiction of town code. “This proposal is to replace in-kind, essentially what exists on the site today. It can be used for retail or office,” she said. According to Ms. Schoen, Mr. Davis has “built lots of attractive homes in our area.”
In the past, the town allowed the lot to be converted into a retail-or-office space, and it is currently classified as a commercial property in a residential district with a nonconforming business use. “Look further into the code,” Ms. Schoen said, “and any commercial property in any lot can have two uses, a pre-existing nonconforming office use, and a single-family residence.”
The Davises’ project did not appear before the East Hampton Town Zoning Board of Appeals, because Tom Preiato, the town’s senior building inspector, gave his permission for the two uses, commercial and residential, and the proposal then went directly to the planning board.
However, David Eagan of MacLachlan and Eagan has questioned Mr. Preiato’s decision. Mr. Eagan, the owner, with his wife, of the nearby Kilmore Horse Farm, is an attorney and former chair of the Wainscott Citizens Advisory Committee. “There has been an appeal filed by myself, in front of the East Hampton Town Zoning Board of Appeals,” Mr. Eagan said, “and under New York State Law, it was timely [ . . .] and it will be heard.”
Mr. Eagan said that a variance of use is extremely rare. In order to obtain its current approval as a commercial space, he said, previous applicants had to prove that the site was not appropriate as a residence and would fare better for commerce. “It is not correct under the law to change a conforming use. Here the Z.B.A. said you could use it for two commercial uses, an antique shop and a real estate office, that is all you can use it for.”
Under New York State law, Mr. Eagan said, you can revert the use from commercial to residential, but you would have to eliminate the commercial use. “You can’t mix the two,” he said, “Where in East Hampton Town do you have a commercial use for 30 years, and then somehow, you can put a house on it? It doesn’t make sense, and that’s what the law reflects.”
Jose Arandia, a Wainscott resident and member of the hamlet’s citizens advisory committee, has been conducting his own research into the town code. “All the documents I saw in this application identify this parcel as a residential parcel. It’s not a commercial parcel,” he said. Mr. Arandia opposes a dual usage, and cited specific town codes to support his position: Redevelopment requires a change in use, not conversion to both; and a nonconforming use prohibits physical expansion.
He pointed out that while the main structure may remain within the original square footage, the residential building of 600 feet would be an addition and expansion. “[In] any commercial lot or district,” he said, “two uses on an additional lot may be authorized within a complex, but this is not a commercial lot, it’s a residential lot. It needs to be treated as such.”
Mr. Arandia also noted the unusual size of the residence, commenting, “That is a very small structure. I don’t know if that can be considered a residence.”
Some in the community have voiced fears that approval of this application could have a domino effect. “Wainscott citizens have been trying to improve the gateway to the Hamptons,” said Jordy Mark, another member of the Wainscott Citizens Advisory Committee. “We’re happy it’s a low-density, low-rise, rural-looking area.” She offered the board a description of the green vista that greets drivers along the highway, and added, “There is no way that this trend will not spread to the entire way to Wainscott. Other people would want to do it, business and a residence.”
“Any discussion about the beauty of the building isn’t an issue,” Ms. Mark continued. “It’s what dual use means in Wainscott: increased development, more development, and more buildings. I wouldn’t be opposed to that building being improved, but I’m opposed to moving it so you can have a second building, and someone living there. I question this concept, ‘I’m building it for family.’ ”
Ms. Mark asked the board to “be careful here because you will change the entrance to our community.”
Bruce Solomon, who has lived in Wainscott for four years, also spoke against the project. “I happen to be standing in a building that’s 300 or 400 years old, it’s held by pegs, there’s some historical integrity. When I come over the ridge entering Wainscott, I have a nice view of the farm. I also have a nice view over Sayre’s Path, an open vista, and then a building that sits back considerably. Thatís a nice feel. It’s not something that’s shoved in your face at the end of a property line.”
Mr. Solomon also questioned the future impact of an approval. “The reason I bought and moved the family out to this area is because of what it has. I’m beginning to see, it’s carving away at the integrity. Why did some people’s families stay here for 14 generations, because they wanted to live down the street from a strip mall? I don’t think so. Do the citizens want to be on County Road 39?”
In support of the project, Nancy Davis, wife of Michael Davis, addressed the crowd. “It’s for our son, who is learning disabled, and has special needs. He will need a place to live when he graduates from his special school,” she said.
One of the last speakers of the evening, Philip Young, who lives on Sayre’s Path, expressed his perspective as a real estate developer for 34 years in Manhattan and Wainscott. “In the early 1980s, I purchased the property on the south [sic] side of Montauk Highway, and developed Wainscott Village. Five buildings have a dozen commercial stores in there. Mr. Davis isn’t trying to turn it into a commercial [use],” he said. “For the building inspector to allow this project to go forward there must be some way that the planning board can find the true legal meaning of what we’re doing here. I like to see a lot of commercial; the more there is, the better for me. But you’re starting a precedent, which was pointed out. It’s wrong, and it’s probably illegal.”