Challenge Building Decision

Montauk neighbors are expected to offer dueling appeals of East Hampton Town Building Department determinations at a meeting of the town zoning board of appeals on Tuesday evening. In one corner is the soon-to-be Southampton Town supervisor, Jay Schneiderman. In the other are Carla and Christopher Concannon, owners of a house under construction at 747 Old Montauk Highway.

Mr. Schneiderman and his sister, Helen Ficalora, own the Breakers Motel, at 769 Old Montauk Highway. They are challenging the department’s having given the Concannons a building permit for a new and larger house  after an existing house was torn down. They are represented by Richard E. Whalen of Land Marks.

The Concannons, who are represented by David E. Eagan of Eagan & Matthews, contend that the Building Department issued a certificate of occupancy for the Breakers, which is immediately to their east, in error in 2005 because the C. of O. included a restaurant. He called the challenge from the owners of the Breakers “retribution.”

According to Mr. Eagan, the Concannons are not disputing the right to have a  restaurant at the motel, which, like their property, is in a resort zone, but believe the owners must obtain site plan approval from the East Hampton Town Planning Board. The question is whether the restaurant existed in 1984, when the town adopted its comprehensive plan, Mr. Eagan said.

If the restaurant existed at that time, a site plan would not have been required. But, according to Mr. Eagan, “The restaurant did not exist since the late 1970s; it did not exist in 2005.” His clients have lived next to the Breakers since the 1980s, and, he said, they “have a whole slew of neighbors who are going to testify.”

Mr. Whalen, on the other hand, said Mr. Eagan was misinterpreting the law. The issue is simply whether the restaurant space existed in 1984, he said, not whether it was functioning as a restaurant “The space was always there, and it was equipped.”

“A commercial operation in a business zone should not be the subject of, I hesitate to use the term harassment, but this is very close to that,” Mr. Whalen alleged.  He also challenged the timeliness of the Concannons’ appeal, an issue Mr. Eagan had also addressed.

Appeals of building inspectors’ decisions must be made within 60 days from when a neighbor might reasonably have been expected to have learned of its issuance, rather than within 60 days from its issuance.

In other words, a building permit that sits in a drawer for two years could still be appealed up to 60 days after construction begins if the neighbors had no way of knowing of its existence earlier. While they agree on that legal point, they disagree on how it applies here.

According to Mr. Eagan, the Concannons learned of the siblings’ plans for a restaurant only after reading about it in The East Hampton Star in April. They filed their appeal within a week. “Our client did not become aware of the 2005 C. of O. until Mr. Schneiderman made his plans known,” Mr. Eagan said.”

Mr. Whalen disputed that, saying that in 2010, when Mr. Schneiderman applied for site plan approval to build decking and stairs outside the Breakers, notification was sent to neighbors and “both the public hearing notice and the Planning Department memos explicitly mentioned the restaurant.” He said the 60-day clock started and ended over five years ago.

Mr. Whalen contends that the house originally on the Concannon property would have been considered a legal, pre-existing structure. But, he said, that status was lost when the house was demolished, with the replacement house being larger.

Mr. Concannon had received site plan approval to reconstruct his house, Mr. Eagan countered. The plan called for two of the four walls to remain standing. However, as demolition went forward, it was discovered that the walls were no longer structurally sound. “They left the foundation in place.”

A complaint was received by the Building Department, and a stop-work order was issued. The stop-work order was revoked after needed revisions were made. “We have been told that we are in good standing,” Mr. Eagan said.

The main event takes place Tuesday at Town Hall at 7:10 p.m.