Zoning Applies Even to a Treehouse

‘Law and Order’ actors faulted for kids’ play structures near property line
David E. Rattray

A letter from the 10-year-old son of two accomplished actors was not enough to persuade the East Hampton Village Zoning Board of Appeals to grant variances to legalize a treehouse, playing court, and swing set when it met on Friday. While the board often deals with minuscule variance requests, this application may have been a first.

Peter Hermann and Mariska Hargitay, who met on the television series “Law and Order: Special Victims Unit,” seek variances at Cottage Avenue to allow the structures, as well as a slate walkway, which fall within required side and rear-yard setbacks. Mr. Hermann and Ms. Hargitay, who is the daughter of the late actress Jayne Mansfield, also seek a variance to allow an accessory building to have 63 square feet of floor area above the maximum permitted by the zoning code.

“I don’t know if this is a game-changer,” Richard Hammer, the couple’s attorney, said, presenting a letter from August Hermann, their son, which he read aloud. “ ‘Dear Mr. Newbold, I promise to play basketball really, really quietly.’ ” “That’s the best evidence I’ve seen in a long time,” Craig Humphrey, a board member, said to laughter. Nonetheless, with the exception of the slate walkway, the board seemed adamant that the structures comply with the code.

 Presenting the case for the swing set, Mr. Hammer said it was planned within the side-yard setback to allow a clear view from the house’s kitchen. However, Frank Newbold, the board’s chairman, said moving it 12 feet to a conforming location would put it closer to the kitchen with nothing to obscure it. “Swing sets do create noise,” he said, adding that moving it “would still respect the neighbors’ privacy.”

As for the treehouse, there are few trees on the property that could accommodate it, Mr. Hammer said, adding that neither the applicant nor the contractor was likely to have known it would be subject to the code. Lys Marigold, the board’s vice chairwoman, was skeptical. “They came in 2013 to get permission for trellises and walkways. After they did that, they built this huge treehouse, and they never thought they needed to come to the Building Department or anything?”

The treehouse roof also appears to be higher than the 14-foot limit for accessory structures, Mr. Newbold said. Further, it is just 7.2 feet from the property line, beyond which there is an occupied apartment. “As often happens in these old neighborhoods, there’s a pre-existing structure next door with a full-time family in residence,” he said, “and now they have this structure seven feet away.” He called the variance requests substantial and said there was a suitable tree in a conforming location for the treehouse.

The playing court, which includes a basketball hoop and backboard, drew similar objections as well as criticism from the board, as it was depicted on a 2004 survey but missing from a 2012 survey, when the certificate of occupancy was updated, two years after the present owners purchased the property. No permit was ever issued to install the court, nor is it mentioned in any certificate of occupancy. In the cement at the court’s perimeter, the date June 2015 is inscribed in what appears to be a child’s handwriting. The court, board members suggested, was installed illegally, removed, and then, following an inspection by the Building Department, reinstalled both larger and closer to the property line.

Mr. Newbold said there were conforming locations where the court could be situated. “Again, the concern is the proximity to the neighbor,” he said, referring to the couple who live in the apartment and their children.

The hearing was closed, but not before Ms. Marigold noted another potential problem. She said there were two beds visible in an accessory building although its certificate of occupancy explicitly prohibits sleeping or dwelling in it. “Remind your clients of what’s in their C. of O.,” she told Mr. Hammer.

Four determinations also were announced at the meeting. The board granted the Incorporated Village of East Hampton a permit and variances to allow the building known as the mill cottage on the Lion Gardiner home lot at 36 James Lane to be restored and converted into a museum for 19th and early 20th-century paintings of East Hampton. Additions are to be removed so that the building will have an 1880s appearance and a well house will be replaced for the same reason. Four gravel parking spaces will be installed where an addition to the cottage will be demolished.

In other decisions, Michael Eisner, the former chief executive officer of the Walt Disney Company, was granted variances for an addition on a house at 97 Main Street that will result in its having 6,530 square feet of floor area, where the pre-existing nonconforming floor area is 5,916 square feet and the maximum permitted under code is 5,712 square feet. The board also granted variances to allow alterations and legalize patios, a slate walkway, and a garbage bin, all within required setbacks.

The board granted Peter Mirijanian and Irina Petrossian of 5 Collins Avenue variances to legalize existing lot coverage of 2,520 square feet, where 1,907 square feet is the maximum. In addition they were granted permission for 46 square feet of floor area in an accessory building, which is above the code, and to legalize the conversion of a nonconforming garage to a pool house within required setbacks that is larger than the maximum 250 square feet allowed and that has an indoor shower, which is prohibited.

Variances were also granted to legalize a slate patio, a shed, a concrete patio, and pool equipment within required setbacks. The application was approved on the conditions that a stove and bathtub be removed from an accessory building and no heat or other bathroom facility be installed.

J3-Sea, a limited liability corporation registered in North Carolina, was granted a variance to legalize 2,175 square feet of lot coverage where the maximum on the pre-existing nonconforming lot at 28 Dayton Lane is 1,953 square feet. The applicant also received variances to legalize an entry step within the front-yard setback and an outdoor shower within the rear-yard lot line.