Pondering the Meaning of ‘Existence’
On Dec. 1, the East Hampton Town Zoning Board of Appeals held a public hearing that the philosopher Jean-Paul Sartre would have appreciated. Much of the debate that night at Town Hall revolved around the meaning of the word “exist,” as it applies to the town zoning code.
At issue was what had been, until early this year, a moribund restaurant at the Breakers Motel. The owners, Jay Schneiderman, who will take over next month as Southampton Town Supervisor, and his sister, Helen Ficalora, have been renovating the space in preparation for opening it next season as a 60-seat restaurant. The work has been proceeding under a 2005 certificate of occupancy, as well as a building permit they received early this year.
A longtime neighbor, Jean Concannon, believes that both the C. of O. and the building permit were issued in error. Her lawyer, David E. Eagan, framed the discussion for the board.
On Dec. 19, 1984, he said, the Old Montauk Highway neighborhood where the Breakers is located was rezoned from residential to resort use, meaning that an existing motel could open a restaurant if it obtained a permit and went through site plan review. However, according to the law, if the motel already had a restaurant, it would be exempted from the review process. It was on that basis that the siblings were moving forward with their restaurant plans.
The problem, Mr. Eagan said, was that the town code does not define the word “exist.” Therefore, he said, the board should take a common-sense approach to the matter, and define the word as meaning “in operation.” Since the Breakers’s restaurant had not been used since the early 1970s, he contended that it had ceased to exist.
Representing Mr. Schneiderman and Ms. Ficalora, Richard Whalen of Land Marks disagreed. If a restaurant was physically there in 1984 on the date of the rezoning, whether or not it was in use, it existed.
As of this past spring, renovations had not yet begun. A visitor observed the old restaurant kitchen still in place, separated from what had been the dining room, with a pass-through between them to facilitate the handling of dishes.
Before the zoning board members can ponder the meaning of existence, they will have to decide whether Ms. Concannon’s appeal of the building permit was timely. Both lawyers agreed that aggrieved neighbors have 60 days to appeal a building permit or C. of O., beginning at the time they should have reasonably known it had been issued, though they did not agree on when the clock began ticking.
Mr. Eagan argued that Ms. Concannon had contacted his office as soon as she read a Star story about the owners’ plans. Mr. Whalen focused instead on a public hearing held by the town planning board in 2010. At that time, the Breakers was installing a deck, and needed site plan approval.
As part of that process, neighbors, including Ms. Concannon, were sent, via certified mail, notices alerting them that there would be a hearing and describing the property as containing a restaurant. Mr. Whalen argued that at that point the 60 days allowed for an appeal began.
“We know that your client did sign that green notice,” John Whelan, the Z.B.A. chairman, told Mr. Eagan.
“If I received a notice from my neighbor that he was building a swimming pool for his pet tiger, that would jump off the page,” said Don Cirillo, a board member.
Mr. Eagan countered that Ms. Concannon attended the meeting she was noticed for, and a restaurant was never discussed.
Earlier this week, LTV made the video of that 2010 hearing available online. While no member of the audience speaks, a former planning board member, Pat Schutte, does read from the project description, which states that the property in question contains “a restaurant, hotel, and resort uses.”
Later that evening the board heard a second appeal, this time brought by the Breakers owners and branded by Mr. Egan “an attempt to intimidate.” It was filed after Ms. Concannon filed her appeal.
Ms. Concannon’s son, Christopher Concannon, is building a new house, two properties west of the Breakers, after demolishing the one that was there. The old house was demolished last December, and a stop-work order was issued after a neighbor, as yet unknown, complained to the town that the project was not following the terms of the building permit.
Mr. Eagan explained to the board that two walls from the old structure were to have remained in place, but they were determined to be unsound once the teardown began. Mr. Concannon obtained a modified permit, said the lawyer, allowing him to resume work.
Mr. Whalen pointed out that under the zoning code, new residences cannot be built in resort zones. But, he argued, that was exactly what was happening here.
Timeliness was again a major concern for the board. The Breakers’s appeal of the Concannon house was filed in May. Shouldn’t the 60-day clock have started ticking when the old house was demolished, Mr. Whalen was asked. His clients, he said, had no way of knowing what would replace the demolished structure.
“That’s silly,” responded Mr. Whelan with an E, the chairman.
Both hearings were kept open until mid-January.