Further Lane: Testing the Limits

A lengthy hearing before the East Hampton Village Zoning Board of Appeals was held on Friday despite the late receipt of revised plans, a development that ensured the hearing’s continuation next week.

Lee Fixel, a partner at the New York investment company Tiger Global Management, purchased 226 Further Lane last fall for $57.3 million. He plans to demolish and replace all the existing structures on the 4.1-acre parcel, which include a residence, swimming pool, pool deck, and tennis court.

Complicating the application, Mr. Fixel, who attended the meeting but did not address the board, is appealing several of the building inspector’s determinations, among them a finding that the proposed residence exceeds the allowable floor area. The inspector, Ken Collum, had determined the proposed floor area to be 13,562 square feet, whereas the blueprint shows a floor area of 10,682 square feet, just under what is allowable.

According to Mr. Collum, who cited a 2011 zoning board determination, the floor area of a garage should be included in the gross floor area of the house when they are attached by a covered breezeway, as Mr. Fixel plans. Mr. Collum also determined that areas shown as attic space on the second floor of the residence are includable in the floor area calculation.

Mr. Fixel is also appealing Mr. Collum’s determination that plumbing proposed in the garage’s cellar is prohibited by code; he plans to install mechanical equipment that requires plumbing there. He also seeks variances to allow a roof deck 31.5 feet above average grade and a maximum height of 35 feet for the house, where the maximum for a building of its design is 27 feet. The proposed tennis court requires a variance as well, as it would fall within the required side-yard setback.

The board’s policy, said Frank Newbold, its chairman, is to “look for compelling reasons to grant a variance” in applications proposing new construction. “Since your client purchased the property,” he told Richard Whalen, an attorney representing Mr. Fixel, “they knew the zoning code, they hired a very talented architect who’s met with the building inspector several times.”

The floor area conforms to code, Mr. Whalen said. “There is a separate, in our view, garage connected to the house by a covered breezeway, which is about 40 feet long.”

Mr. Whalen focused on the 2011 Z.B.A. decision, involving a house at 50 Huntting Lane, in which the board ruled that where a garage is attached to a one-family dwelling by a roofed connection or breezeway, it should be included in calculating the overall floor area. He quoted the village code’s definition of gross floor area: “The area in square feet of the ground or first floor level of any structure . . . plus the area of any other level or story of the same building or structure, measured to the exterior face of the frame or masonry wall.”

“We have an odd situation here,” Mr. Whalen continued. The 2011 determination “is saying that this covered breezeway is causing the garage to be essentially the same building as the house,” but “gross floor area is measured to the exterior wall . . . the breezeway doesn’t have walls, it’s open. So we have this odd situation where a structure — the breezeway, which is open, which cannot be gross floor area — is effectively making a detached garage part of the house.”

Taking that assertion to one possible conclusion, “could we have a bedroom and a bathroom in [the garage?]” Mr. Whalen asked. Both are prohibited. “It would seem to me that we could, not that we’re planning to . . . I don’t think that’s an outcome that you want to see.”

But Lys Marigold, the board’s vice chairwoman, said of the breezeway, “When you look at it, the very fact that there’s a roof attaching it contributes to the overall look of a lot of house.”

“We certainly hear your arguments,” Mr. Newbold said, “and will take that into consideration.”

The house as initially designed included a 1,000-plus-square-foot space marked “attic” on the second floor, across a corridor from bedrooms, Mr. Newbold said after the meeting. Mr. Collum, he said, had determined that that was clearly intended to be converted to habitable space in future. The architect, Oliver Cope, revised the plans, taking the center part of the “attic” space and making it a playroom. A playroom intended for the first floor was then made a screened porch, which would not be included in a floor-area calculation.

Mr. Whalen argued at the meeting that the space in question met the code’s definition of attic. “They are unfinished spaces and they sit at the upper level, the top floor of the house.” Concern that it could be converted to habitable space was unfounded, he said, as its intended use is “primarily for the air handlers and other equipment that is vital to the house.”

With respect to plumbing in the garage, Mr. Whalen again quoted code, stating that habitable space and a toilet, shower, or bathtub are prohibited, and that plumbing is prohibited on a garage’s second floor. The proposed garage has no second floor, and will have no plumbing on its first floor, but water lines partly associated with the residence’s proposed geothermal heating and cooling system are to be housed in the garage’s basement. That, he said, would not only allow additional space in the basement of the house itself for living and recreational areas, but also remove a potential source of noise from the residence and allow maintenance without having to go inside it. “What we’re proposing,” he said, “is clearly not prohibited by code.”

The roof deck would be invisible to neighbors or people walking on the nearby ocean beach, Mr. Whalen said. The house is of “a traditional shingle-style East Hampton design,” he said. An existing tennis court is to be replaced in the same location, but recessed below grade, “which would better protect neighbors in terms of noise impacts.”

Linda Margolin, representing the owner of lots to the east and north of Mr. Fixel’s, said that the plans “understate the amount of square feet” and exceed the allowable floor area. She also objected to the second-story space designated as attic. “If you take this to its possible extension, you could construct a first floor of 10,773 square feet on this property, then construct an unfinished second floor of five or six or seven or 8,000 square feet and call it attic, and it would just be fine. . . . We believe the building inspector properly included the attic space here” in his floor area calculation.

The hearing was left open pending Mr. Collum’s opinion on the disputed floor area calculation and a review of the revised plans. It is tentatively on the agenda of the board’s meeting on Friday, June 9.

Three determinations were announced at the meeting. Ellin Salzman and her family, who own what is considered a landmark modernist house at 20 Spaeth Lane, were granted variances to allow construction of a pool house, installation of pool equipment, and alterations to a patio, all within the required front-yard setback.

The board granted Dale Jones Burch a wetlands permit to legalize prior and continued removal of phragmites from the wetlands at 31 Terbell Lane, and to allow the continued existence of a children’s play set within the required front-yard setback. The permit was conditioned on compliance with the invasive species management plan by Land Use Ecological Services, a Medford provider of environmental planning and technical services.

James Zirin and Marlene Hess were granted variances to allow additions to a house, resulting in a floor area of 6,682 square feet where the pre-existing floor area is 6,119 square feet and the maximum permitted by current code is 5,509 square feet. The board also granted variances to permit alterations at the pre-existing setback of 37 feet where the required front-yard setback under current code is 50 feet.