Spielberg, Setbacks, and Secret Service

The matter of Steven Spielberg’s garage and storage structure on Apaquogue Road, which needs an area variance to permit its continued existence, came before the East Hampton Village Zoning Board of Appeals at its meeting on Friday.

The structure is 38.3 feet from the front property line. At the time of its construction, the required setback was 50 feet. In August 2002, a few months after a building permit was issued, the setback was increased to 80 feet.

The noted film director is also appealing an earlier determination requiring a special permit for the already-built addition of two bedrooms to a second residence on the 5.5-acre property. The village’s head building inspector, Ken Collum, had found that the bedrooms were added without Suffolk County Health Department approval.

Linda Riley, the village attorney, told the board that no part of the garage complies with the current 80-foot front and side-yard setbacks. True, said Richard Whalen, an attorney representing the applicant, but more than three-quarters of it conformed to the standard at the time the building permit was issued.

That permit, Ms. Riley responded, expired years ago.

Mr. Whalen told the board that conforming to the old 50-foot setback would have forced the structure to jut into a driveway. “The building is all but invisible from Apaquogue Road, and for that matter it really is from the neighboring property to the north,” he said, by reason of thick hedges. “The building has no impact on neighbors or on the public at large. That’s not an excuse for it being put not within the setback, but visually, it has no impact on anyone outside the property.”

The driveway notwithstanding, said Ms. Riley, “There’s all kinds of other space for a garage.”

Mr. Spielberg was probably trying to maximize space devoted to paddocks, Mr. Whalen suggested.

Ms. Riley said the application called the structure’s location “a builder’s error,” yet Mr. Whelan was now arguing that it was a deliberate choice. This, she said, amounted to “another case of let’s build it now, and who’s going to make us take it away, because it’s already there?”

“Right,” murmured Lys Marigold, the board’s vice chairwoman, who waspresiding in the absence of Frank Newbold, the chairman.

Under the 2002 requirement, Mr. Whalen said, the structure encroaches 11.7 feet into the setback. “If you look at visual impacts on the neighborhood . . . this really is not a significant variance,” he said.

“The fact is that it’s the law now that is applicable,” Ms. Riley protested. “You have to concede that what’s in the setback area is 100 percent of the building . . . it’s not a small portion of the building.”

Mr. Whalen disagreed. “Even though we didn’t get a C of O, we got a building permit,” he said, “and the majority of the building was compliant with the setbacks when the building was built.”

Ms. Marigold asked him to determine just when the garage was constructed, and said the board would proceed from there.

With regard to the bedrooms added to the second residence, Mr. Whalen said that in 2005 a building permit was issued to convert three of five garage bays on the ground floor to two bedrooms and two bathrooms, which increased both bedrooms and bathrooms from two to four.

After finding this year that no county health permit had been obtained, Mr. Collum declined to issue a certificate of occupancy, he said, adding that Mr. Whalen has both appealed that decision and sought a permit retroactively.

“The work that was done to the building was pursuant to a building permit,” said Mr. Whalen. There too, he told the board, the construction is not visible to neighbors and has no effect on them, and the building was already in use as a residence. “Even if you were to conclude a special permit is required, there are very good grounds for issuing it,” he said.

Ms. Marigold shook her head. “Over and over again, you call it a lawfully existing single-family residence, and yet under our village code, a single-family residence is ‘designed or arranged for occupancy by one family on a non-transient basis.’ How does that fit? These are extra guest rooms that are not occupied most of the time.”

“Neither you nor I knows how they are occupied,” said Mr. Whalen.

“Yes, we do,” said Ms. Marigold. “There’s a very, very buttoned-up estate manager who took me around, and I said, ‘Who lives here?’ and he said, ‘No one.’ He talked about how when they have people like President Clinton come and stay, it’s used for one night or two for their Secret Service men. No one lives there.”

“There was a framed photograph. I said, ‘Why are there photographs here?’ He said, ‘Just for the look. Nobody stays here except once in a while we use it for spillover.’ ”

“That’s not a single family.”

Mr. Whalen said that Health Department approval was not required because all modern septic systems are designed for four-bedroom houses. Drew Bennett, a consulting engineer for the village, had confirmed that the system met required standards, he said.

Ms. Riley told the board a special permit would resolve the matter. “I’m inclined to grant that,” Ms. Marigold said. Her colleagues voiced agreement, and the hearing was held over to Friday, June 27.

The board also announced three determinations. An application for variances to permit the construction of walkways and patios within setbacks at 54 Lee Avenue was granted. A brick patio was allowed to remain within a setback and a play structure and generator were allowed to remain as close as five feet from the property line at 19 Lee Avenue, and an extension of existing stairs and the construction of an eight-foot-high sound barrier around the generator were granted. Finally, the board okayed the continued maintenance of an arbor and granted a front-yard setback variance for an addition to a house at 111 Montauk Highway.

A hearing concerning a garage and caretaker’s apartment on property belonging to Howard Schultz, chief executive officer of the Starbucks chain, was adjourned once again. It will resume on Friday, June 27.