Daffodil shoots are up and seasonal businesses are stirring again, bringing to mind, for some, the stresses of the summer season, when bars and restaurants will once again draw crowds.
Zoning changes have long outlawed new businesses of that type in residential neighborhoods. Some, however, remain because they were built before the zoning code took effect, leading to season-long pleas from neighbors for town officials to do something to keep their neighborhoods from being overrun.
The situation has been a perennial one, particularly of late in Montauk, where the popularity of certain businesses has exploded. But while the topic has been on the table for the past several years, the East Hampton Town Board has come up with few if any solutions.
Speaking at a board meeting last Thursday, Bob DeLuca, the president of the Group for the East End, outlined for East Hampton officials a Southampton Town law that gives the town the authority to phase out businesses that no longer conform to zoning, should they continually create community problems.
A law such as Southampton’s, Mr. DeLuca suggested, could provide “leverage” to the town in working with a business such as Cyril’s Fish House on Napeague to resolve outstanding code violations and address crowding, parking, and potential environmental problems caused by septic flow.
Mr. DeLuca was one of two speakers making final comments that night on a request by the owners of the Cyril’s property, as well as an adjacent lot, to change the zoning of both parcels from residential to neighborhood business, before a hearing on the issue was closed. The change would lift Cyril’s pre-existing, nonconforming status and allow it to expand.
A section of the Southampton Town Code describes the circumstances under which a “compulsory termination of nonconforming uses, bars, taverns, and nightclubs” can be required. The law allows officials to address nonconforming uses that “generate traffic, noise or pollution, or present unsightly development, thereby diminishing the value and enjoyment of neighboring residential uses.”
Citing health and safety issues, over-occupancy, and construction without required building permits, the law calls the continued existence of bars, taverns, nightclubs, and cabarets that were established before 1957, when they were outlawed in residential districts, a “growing detriment to residential communities.”
It was passed after the town did a “nightclub study” to inventory existing businesses in residential areas and the potential quality-of-life issues for neighbors. The study looked at building and site conditions, including hours of operation, live entertainment, and indoor or outdoor seating, and examined ambient noise level readings as well as commentary from people living nearby.
The town also analyzed the certificates of occupancy issued to the nonconforming businesses to see if they had been improperly expanded.
“Certain of these establishments repeatedly violate provisions of the Town Code and the New York State Uniform Fire Prevention and Building Code and appear summer after summer on the Town’s Justice Court calendar for the very same violations,” Southampton Town concluded in its legislation — a similar scenario to what sometimes happens here.
The Southampton code calls the introduction of live music or DJs at an increasing number of bars and nightclubs an “intensification of use” that, in conjunction with a “resulting increase in noise, litter, excessive parking, overcrowding, criminal behavior and loitering has had an adverse impact on neighboring residential communities.”
In general, Southampton’s town code concludes that it is “without doubt that nonconforming uses are problematic,” in that they hinder the overall goals of proper land use, under the present zoning code. The code also concludes that “zoning regulations cannot achieve the goal of phasing out incompatible uses unless nonconforming uses are eliminated.”
When a nonconforming business poses problems in Southampton, the town planning board can be asked to issue a report detailing “prior and current town code violations and convictions, traffic and/or parking conditions that negatively impact the surrounding neighborhood; and complaints from multiple residential neighbors resulting in the use of municipal resources relating to excessive noise, litter, criminal activity, including under-age drinking or violations of the New York State Uniform Fire Prevention and Building Code,” as well as information about any problems with site plan approvals or a certificate of occupancy, or noncompliance with Justice Court orders.
With approval from the town board, the Southampton Town building inspector can issue a “notice of intent to amortize” or a “notice of termination” of a use to a property owner, or enter into a contract with the owner of a bar, tavern, or nightclub to terminate the use within a certain period of time. Owners may instead seek to mitigate the negative impacts by working with the planning board on a site plan review to address things such as parking, noise control, and screening, or apply to the Zoning Board of Appeals to change to another nonconforming use of the property.
“The purpose of this section is to strike a better and more equitable balance between the rights of the property owner to continue the nonconforming use and the rights of the residents in the surrounding neighborhood to protect their property values as well as their safety, health and welfare,” the Southampton law says.
Mr. DeLuca said that New York State courts have upheld similar laws. In doing so, he said, the courts have employed a “balancing test” weighing the private cost against the public gain.
Debra Foster, a former town board and planning board member, also spoke to the town board last Thursday before the hearing on Cyril’s proposed zone change was closed. She noted that the town comprehensive plan, in its section on Amagansett and Napeague, calls for restricting commercial and residential development along the Montauk Highway, and for protecting Napeague Harbor.