No to Bigger Decks at Ocean Colony

A planned expansion of decks at 39 of the 40 units at the Ocean Colony Beach and Tennis Resort on Napeague would violate the East Hampton Town Code, according to a split decision signed by the zoning board of appeals on Dec. 21.

The decision, which upheld a building inspector’s determination earlier this year, referenced the pertinent section of the code: “No building or structure or part thereof which is used by a nonconforming use shall be enlarged or added to.” The Ocean Colony is allowed to operate in an area zoned for residential use only because its existence predates the code.

The property is 8.6 acres in size. Hoping to increase its decks from 78 square feet each to 112 square feet, the resort first sought the necessary site-plan approval from the town planning board, which asked the Building Department to weigh in. Its determination was received in March, setting in motion the appeal to the zoning board.

At a Sept. 22 hearing, Jonathan Tarbet, an East Hampton attorney, and Britton Bistrian of Land Use Solutions argued on behalf of Ocean Colony that the board was bound by the precedents set by previous Building Department determinations. Mr. Tarbet argued that other pre-existing restaurants in residential districts have been allowed to expand their decks, singling out Ruschmeyer’s, on Second House Road in Montauk, which received approval in 2002 from the late Don Sharkey, then the town’s chief building inspector, and East by Northeast on Edgemere Street, also in Montauk, whose okay came from Tom Preiato, the most recent former head of the department.

However, David Lys, Cate Rogers, and John Whelan, the board’s chairman, found that while the board should acknowledge prior Building Department determinations, it “is only subject to its own prior precedent.” Elizabeth L. Baldwin, the board’s attorney, wrote the decision.

During the hearing, Mr. Whelan had called the proposal “an expansion of outdoor living space,” and Ann Glennon, the current head of the Building Department, supported the March determination. She told board members that they needed to review the town code, not precedents.

Don Cirillo, whose five-year term on the board ends today, and Lee White were the dissenters in the 3-to-2 vote.