Zoning Board Ping-Pong Application Ends Amicably

An application to resolve the illegal conversion of an attic to habitable space was finally closed on Friday, with members of the East Hampton Village Zoning Board of Appeals expressing regret for subjecting the property owners to what the building inspector had likened to a Ping-Pong match. 

When Charles and Karen Phillips bought their house, at 233 Cove Hollow Road, from a developer last year, it was larger than indicated on the building permit. A certificate of occupancy had been granted, but it specified that the area over the property’s three-car garage was to be only a storage attic. The floor plan also showed an adjacent storage area that had attic space above it. The wording of the certificate of occupancy was imprecise as to what space could not be converted.

Relocating from California, Mr. Phillips, who is the chief executive officer of Infor, a company that specializes in enterprise software applications, was unaware of this and hired a contractor to create an office and conference room in the storage area. It was completed before the Phillipses moved in. Upon discovering that the office and conference room had resulted in the floor area of the house being some 1,200 square feet above the maximum allowed, the couple applied for a variance.

 Their application was first heard at the board’s June 23 meeting, with members disinclined to grant what they considered a  substantial variance. When the hearing was continued on July 28, the applicants offered to remove a corridor, bedroom, and full bathroom from the first floor and to convert it to a screened-in porch, which would no longer be included in the floor area calculation. A half-bathroom adjacent to the office would also be removed, and the Phillipses offered a covenant stating that the space would never become a bedroom.

However, it was discovered that converting the first-floor living space to a porch would result in the basement’s extending beyond the house’s footprint, which is prohibited. At the July 28 session, the couple agreed to apply for a building permit for the first-floor conversion, even though it was likely to be denied. On Friday, in what was technically a new hearing, the Phillipses applied for the variance necessary to convert portions of the first floor to a screened porch with a full cellar below it. At Friday’s meeting, Lys Marigold, the board’s vice chairwoman, who was at the June 23 but not the July 28 meeting, called a halt to the process.

 “It was an original mistake from the Building Department, and then the contractor,” she said. “It’s a compounded mistake that has just kept going and going and going.” Given the unusual circumstances, it made more sense to simply grant a variance for the excess floor area created by finishing the space above the garage, she said. 

Addressing the couple, she said, “When you’re here longer, you will see that the Z.B.A. is actually very fair, very considerate, and we’re not mean ogres. If the others of the board will step back, too, I would like to present a case for just accepting it,” although with the stipulation that the office and conference room never be used as a bedroom. 

The office and conference room have existed for some time with no complaints from neighbors, Frank Newbold, the board’s chairman, said, “and it all seems quite a reasonable use by the applicant.” Mr. Phillips “has made every effort . . . to find mitigation that’s reasonable,” he said, adding that requiring the couple to convert a portion of the first floor would be onerous.  

“I characterized them as innocent victims all along,” Lenny Ackerman, the couple’s attorney, said, “and I think this is good value judgment on behalf of the board.”

The board decided that a covenant stating that the office and conference room area would never become a bedroom, even under future owners, was sufficient to conclude the discussion.

Also at the meeting, the board announced decisions concerning two of four contiguous lots on Lee Avenue. Jane Goldman and her husband, Benjamin Lewis, were granted a variance allowing eight-foot-high deer fencing at 72 and 74 Lee Avenue, despite the six-foot limit in the zoning code. The board had granted variances for the fencing at 70 and 76 Lee Avenue on Aug. 11, noting that it was embedded in vegetation and could not be seen by neighbors or passers-by. However, it delayed action on 72 and 74 because the fencing on those lots runs through a scenic easement donated to the village. 

The board had previously granted a variance regarding the easement on the condition that structures be removed from the easement. The applicants took the matter to court, the court annulled the condition in the Z.B.A. decision, and the village filed a notice of appeal, which is pending.