Board Favors Building Inspector, Twice Over

The East Hampton Town Zoning Board of Appeals has made several decisions this month upholding the town’s head building inspector’s interpretation of the zoning code. The board even ruled against an appeal of one of the inspector’s determinations while conceding that what the applicant sought might actually be better than what the zoning code allows.

On June 7, the board ruled that Ann Glennon, the inspector, was correct in September last year when she said a merger of two lots and the construction of a new building in their place on the Montauk Highway in Wainscott would result in the property becoming less conforming to zoning and therefore not permissible.

 On June 14, the board also agreed with Ms. Glennon, who had found that opening yoga or exercise classes to the public at Montauk’s Surf Lodge would be an illegal expansion of its legal but nonconforming use.

On the other hand on June 14, the board voted unanimously in favor of Sean MacPherson’s plan to resurrect the Montauk Association clubhouse, and one of its members spoke of it in glowing terms.

The Wainscott lots are at 405 and 407 Montauk Highway. Dubbed Wainscott Wombles II by their owner, Michael Davis of Michael Davis Design Construction, they are developed with two aging houses that have been used for businesses in recent years. Mr. Davis wanted to tear them down, merge the lots, and build one structure for his business, as well as his son’s landscaping business, which would have the exact square footage of the two houses, combined.

Mr. Davis already owns the property to the west of the houses, on the corner of Sayre’s Path and Montauk Highway, where he constructed a business building as well as a small house for his son.

The problem is that the house lots are zoned for residential use. While the houses have been used for many years for businesses, one of them, at 405 Montauk Highway, has a certificate of occupancy as a residence.

Mr. Davis appealed to the Z.B.A. hoping it would overturn the Building Department’s decision, and a public hearing was held on April 19.

“To me, it is a well thought out plan. I commend them,” John Whelan, the board’s chairman, said on June 7. However, Cate Rogers reminded her fellow members that “we are not here to decide whether it is a nice application.” With Ray Dalene having recused himself, four board members found Ms. Glennon’s interpretation correct and denied the appeal.

The June 14 decision upholding Ms. Glennon on the Surf Lodge was unanimous. The Surf Lodge, a hotel as well as a nightclub, had been allowing the public to join hotel guests in morning yoga and wellness classes on its deck. Because the Edgemere Street establishment is on property zoned for residences and is allowed to operate because  it pre-exists the town code, Ms. Glennon determined that opening the classes to the general public would be an illegal expansion. 

The applicant, through its attorney, Richard A. Hammer, had made the argument at a May 17 public hearing that allowing the public to attend the classes was an accessory use allowed under state law. Ms. Glennon said inviting the public to use what would otherwise be an accessory use by hotel guests was an additional use, or an expansion.

David Lys pointed out that exercise studios are defined in the code, and have certain parking requirements that the Surf Lodge would have to meet. “It is a use that is not allowed there,” he said, except for hotel guests.

While Mr. Whelan, the Z.B.A. chairman, said, “The idea of this being open to the public is wonderful,” he agreed it would be an expansion of use. Lee White said reversing Ms. Glennon’s determination would push the town code onto a “slippery slope.” The rest of the board agreed.

Meanwhile, an application for variances that the board had previously denied will likely be revisited. The variances sought would allow an existing third story to remain on a house at 186 West Lake Drive, owned by Michael Walrath, who also is a partner in the Surf Lodge. Mr. Walrath had offered mitigation in several ways, but Mr. Hammer, Mr. Walrath’s legal representative, pulled the application before the Z.B.A.’s attorney, Elizabeth Baldwin, could write the final decision. The board’s 5-to-0 decision against the application was a straw vote, she and Mr. Hammer agreed. A decision is not legally final until it is written down by the town attorney’s office and voted on again by board members.

Withdrawing the application allows Mr. Hammer to sit down with the town’s Planning Department to search for a solution. Withdrawing the proposal also takes litigation off the table since a lawsuit could not be filed against the Z.B.A. until the decision was finalized.

Mr. MacPherson’s plan to reconstruct the old Montauk Association clubhouse, another three-story house, has unanimous approval. His plans were described in detail in a previous Z.B.A. story. On June 14, Mr. Lys,“This is one of the most unique projects we have ever seen. I commend the landowner for investing the amount of time and money.” He pointed out that while the property is in a designated historic district, Mr. MacPherson could have built anything he wanted, up to 5,000 square feet. Instead, he chose to meticulously recreate what was lost so many years ago. “We may never come across something like this again,” Mr. Lys said.