Room for Mechanicals, or an Illegal Story?

The East Hampton Town Zoning Board of Appeals will consider a controversial construction project in Montauk’s Hither Hills neighborhood when it meets on March 19 and 26, one that its critics say will set a dangerous precedent if completed according to plans.

At issue is a “penthouse attic” atop the house under construction at 10 Hudson Road. Michael Gengos and Gloria Barr-Gengos, the property’s owners, were issued a demolition permit in October 2017 and tore down the existing house, and in January 2018 were issued a building permit for a new residence. Excavation began on March 14, and a concrete foundation was poured 10 days later, according to David Gilmartin Jr., an attorney representing the Gengoses. 

The house has a flat roof — except for the penthouse attic, which has a pitched roof. The attic will enclose and house mechanical equipment, Mr. Gengos told the Z.B.A. at a Jan. 8 hearing. But Joseph Stavola, who with his father Daniel Stavola, a Montauk builder, built a house north of 10 Hudson Road at the corner of Cleveland Drive and Stuyvesant Drive, say that the penthouse attic is a third story, which is prohibited under town code, and that the house’s height is more than allowed. They have appealed to the Z.B.A. and are seeking revocation of the building permit, a decision the board may announce on March 19. 

Philip Gamble, who was chairman of the zoning board for 12 years, supports revoking the permit. “From serving on the East Hampton Town Zoning Board of Appeals for 32 years . . . I became well-versed in the zoning code of the Town of East Hampton,” he wrote to John Whelan, the Z.B.A.’s chairman. “It has always been my understanding that third stories, regardless of their intended use, are strictly prohibited in B-residence zoning districts. As such, I was absolutely shocked to learn that the Building Department issued a building permit for the construction of a ‘third story penthouse.’ ” The Z.B.A., he said, lacks jurisdiction even to grant a variance to permit the same. The building permit, he wrote, is “an egregious violation of the town code. Further, I believe that permitting this structure to exist would set a dangerous precedent that is absolutely contrary to the long-established interpretation of the town code.” 

Twice last month, Daniel Stavola addressed the town board about the house under construction. “Builders and contractors live by the town building code,” he told the board at its Feb. 21 meeting. “Could someone explain to me how this house here is over 25 feet . . . a total height around 31 feet, also three stories?” 

The board is aware of the matter, Supervisor Peter Van Scoyoc answered, but could not comment due to the ongoing appeal of the building permit’s issuance. 

An appellant has 60 days to challenge the issuance of a building permit. However, Michael Sendlenski, the town attorney, told the zoning board at the Jan. 8 hearing, “calculating when that starts running is a fact-intensive mission.” It does not start on the date of a permit’s issuance, rather when the appellant knows or should have known when it was issued, he said.

The continued existence of the penthouse attic may hinge on a determination of when that 60-day window commenced, and attorneys for Mr. Stavola and the Gengoses argued that point at length at the Jan. 8 hearing. “We are well within our 60 days,” asserted Deborah Choron, representing Mr. Stavola. “If you’re trying to draw the line based on . . . when Joe should have become aware this might be an illegal penthouse . . . it wasn’t until he saw something from his yard” in mid-July. Her client “acted immediately after he became aware of the potential illegality,” she said. 

Mr. Gilmartin disagreed, telling the board that May 15, when framing of the house including the attic was completed, was “the latest date within which he can claim he was not chargeable. . . . All of this construction took place within plain view of the house,” he said of Mr. Stavola’s Cleveland Drive house, which is rented to a tenant. 

In fact, Mr. Gengos told the board at the same meeting, he and Daniel Stavola had previously discussed the construction plans in depth. “He was fully aware that we were going to be building a structure that had a penthouse attic that would enclose and house mechanicals by the end of March 2018,” he said. 

Daniel Stavola took exception to that assertion. “We never discussed any penthouse on the roof,” he said. “I would have been jumping up and down! This was all dragged out to make it a technicality on time. The house wasn’t started in January. It wasn’t started until the end of March, April. There was nothing on that flat roof for quite some time. . . . Then all of a sudden there’s this third peak.”

Ann Glennon, the Building Department’s principal building inspector, told the zoning board that the elder Mr. Stavola had contacted her department several times, “asking if you’re allowed to have a flat roof and a pitched roof on a house.” She said she researched the code and told Mr. Stavola, “there is nothing in the code that I can find that would define that you cannot have a flat roof and a pitched roof.” The penthouse attic was in the original plans, she said, and not a modification added later. 

“I feel that it’s going to be tough for all of us to make this timeliness decision,” Mr. Whelan told his colleagues at the Jan. 8 meeting. A Jan. 28 email from The Star seeking comment was not answered. 

Allowing the penthouse attic, Joseph Stavola told The Star last month, “would be a precedent-setting ruling.” Should the zoning board allow it to remain, he said, “we will see these pop up all over the place.”