Nonconforming Structures Cause Debate

If a legally pre-existing structure that does not conform to current zoning is moved and expanded, is it still legal? The East Hampton Village Zoning Board of Appeals spent some time on this question Friday despite the fact that the village code says such structures cannot be expanded.

Michael Ostin, a music executive (and son of Mo Ostin, a music-business mogul who signed artists like Frank Sinatra and Jimi Hendrix), bought property with two residences on it last year at 115 Montauk Highway, which extends to Cove Hollow Road.  The main house has been demolished, and a new, 6,193-square-foot house that meets all zoning requirements has been proposed. However, Mr. Ostin is seeking variances to relocate and expand the smaller building, a 507-square-foot, two-bedroom cottage. He proposes making it 958 square feet, with an additional bathroom and a half.

The village permits only one single-family residence on a property unless a second was built before the code was adopted. Andrew Goldstein, the applicant’s attorney, told the board Friday that the cottage in question had been on the property for 50 years. “You can barely swing a cat in that house, it’s so small,” he said.

 Frank Newbold, the chairman, however, said the cottage was in disrepair and “seems derelict,” which raised the question of whether its pre-existing nonconforming status had been abandoned. Under the village code, a nonconforming use that is discontinued or ceases to exist for a continuous period of a year is deemed abandoned and accordingly prohibited.

But nothing in the code says a structure has to be pristine and kept in good repair, Mr. Goldstein said. “It has to be capable of being used, and it was, albeit not with comfort.” The board asked for evidence, such as utility bills, that it had not been abandoned. Mr. Goldstein said he would comply.

Mr. Newbold noted that Mr. Goldstein had previously served on the zoning board. “You know,” he said, that “we’ve always taken very seriously any alterations” to pre-existing nonconforming structures. It’s true that the cottage is legal, he said, “But I doubt much can be saved from this. . . . Why wouldn’t every single resident in the village who has a cottage say, ‘I would like to move mine to a more convenient location and add 300, 400 square feet to it?’ ”

That question was “almost inappropriate,” Mr. Goldstein said. “You’re not supposed to speculate.” The board is wary of setting precedent, Mr. Newbold replied.

Board members remained skeptical. “I have a real problem,” said Lys Marigold, the vice chairwoman, “with . . . tearing it down, moving it to another location, and building what looks to be a house.” Board members agreed. With its proposed expansion, the cottage “looks like a three-story house,” she said. Nearly doubling the size of the cottage, Mr. Newbold said, would present “much more impact on the neighborhood.”

The hearing was left open, pending the receipt of a floor plan for the expanded cottage and evidence that it had not been abandoned. It is to be revisited at the board’s meeting on Friday, May 22.

The board also announced the denial of one application and several approvals.

Lawrence and Lisa Cohen’s application for approval of a studio and office with a bathroom and shower on the second floor of a garage at 207 Cove Hollow Road, not far from the Ostin property, was denied. It had been illegally converted from storage space. Their request to permit 1,693 square feet of finished floor area in the accessory structure, which was more than the maximum permitted, was also denied. However, they will be able to maintain two air-conditioning units and a trash bin within required setbacks.

Last month, board members had visited the two-story garage and found indications of habitation, including an alarm clock, end tables, and an outline of a bed on carpeting. 

Joseph P. Rose of 42 Hedges Lane, however, was granted a variance to allow a 8,932 square foot residence, already constructed, rather than the permitted 5,356 square feet. He also received other variances for a swimming pool, pool patio, trash bin, outdoor shower, and an air-conditioning unit, all of which are within required side and rear-yard setbacks. The determination included a condition that portions of the existing pool patio be removed. The board apparently granted these variances in connection with a building permit Mr. Rose had received previously to rebuild on the same foundation a nonconforming wing of the house that a prior owner had demolished.

Sheraton S. Kalouria of 11 Muchmore Lane was granted a variance to allow the construction of a single-family house 495 square feet larger than the maximum permitted, as well as a variance for a proposed window well area to be within the side-yard setback. The board conditioned approval on there being no structural connection between the residence and a detached garage.

The board also granted Ayse Kenmore of 152 Montauk Highway a variance to allow a finished third floor that is 577 square feet larger than the maximum permitted. The space is to be used for storage only. Ms. Kenmore was also allowed to maintain a patio and fountain within a setback.