Village Z.B.A. Questions Bedrooms in Pool House

The battle over accessory structures and how they can be used continued at an East Hampton Village Zoning Board of Appeals meeting Friday, as Alfred and Stephanie Shuman sought to legalize renovations to a pool house on their Windmill Lane property that left it with an extra bedroom and sitting room in what had been a storage room.

The Shumans are appealing a building inspector’s determination that a variance is required for the modifications, which the board considers to be unapproved bedrooms. With very limited exceptions, village code prohibits accessory buildings from being used for sleeping.

If the appeal is denied, the Shumans will apply for the variance. They also seek variances to keep a swimming pool with 2,225 square feet of stone deck and associated landscaping, and a new deck over the pool house with an elevated access ramp, and a generator.

The pool, deck, and pool house are approximately 80 feet seaward of the required setback. Pool fencing and deer fencing presently seaward of the coastal erosion hazard line are proposed to be relocated landward of that line. The property contains the Hayground Windmill, which the village has designated a timber-frame landmark.

Renovations to the pool house were in accordance with a 2004 building permit, said Richard Whalen, an attorney speaking on behalf of the Shumans. There was a bedroom in the structure’s second story and two sitting rooms downstairs, he said. When the Shumans’ children are in residence, one of those is used as a nursery. “The fact of the matter is, there is nothing limiting what you would do with them,” he said.

But a 2001 certificate of occupancy, said Frank Newbold, the board’s chairman, called the downstairs portion of the pool house “a partially finished basement with two changing rooms, each with sink, shower, and toilet, plus storage area.” Now, he said, one changing room has turned into a bedroom with a bath, and a storage area has become another sleeping area. “Don’t you see that as an expansion of a pre-existing nonconforming use?” he asked.

“No, because there was nothing saying you couldn’t use that room in the past for sleeping purposes,” Mr. Whalen said. As long as they have legal egress, he said, “you don’t regulate what goes on in the room.”

Mr. Newbold and Linda Riley, the village’s attorney, disagreed. A notice of violation dated July 30 specifically cited “extension of pool house adding a bedroom and sitting room to bottom floor where a storage room was,” Mr. Newbold read.

As long as there is legal egress, Mr. Whalen repeated, “I really don’t know you have a right to control how the room is used.” As a practical matter, he asked, “how would you ever do that?”

Larry Hillel, another board member, had a suggestion. “You could eliminate the heat,” he said. “What you’re saying is, once you have something, you can do whatever you want, and ‘What can you do about it?’ There are ways we could do it.”

Lys Marigold, the board’s vice chairwoman, was skeptical of Mr. Whalen’s argument. “Following your logic,” she said, “any pool house can be turned into sleeping quarters.” When the land was divided in 1975, she said, the property was described as having one single-family dwelling, a garage with apartment, a windmill, and a bathhouse, with the last two to have no living facilities. Somehow, she said, it has transformed “from that very commonly understood pool house into what you’re calling a residence.”

In the 2001 certificate of occupancy, said Mr. Whalen, “the building had a kitchen, a bedroom, and is described as a cottage. It’s a residential structure.”

Ms. Riley disagreed. “It’s not just expansion; it’s alteration,” she said of the structure’s use. “I’m not sure you would have gotten that 2004 building permit if it was clear that you were going to end up with three bedrooms.” In an informal poll, board members agreed that the downstairs bedroom with bath should revert to an unfinished storage area.

The board had already asked the applicants for a revised landscaping plan pertaining to the fencing, a shed that is to be removed, and revegetation. In light of that request, Mr. Whalen asked that the board give further consideration to the accessory structure rather than make a determination on the spot. The hearing will be revisited at the board’s next meeting on Jan. 9.

The board also announced three determinations. Dexter Goei of 207 Lily Pond Lane was granted coastal erosion hazard area, dune setback, zoning code, and freshwater wetlands variances for the renovation and expansion of a pre-existing nonconforming three-story house, including construction of an expanded basement lying almost entirely within the natural coastal hazard area. A project-limiting fence will have to be installed, and code enforcement officers will periodically inspect the site to ensure that no dune vegetation is disturbed.

Michael Minkoff of 11 Jones Cove Road was granted variances to keep a two-story house with attached two-story garage exceeding the permitted gross floor area and within the required front-yard setback, as well as a tennis court, pool equipment, pool house, and swimming pool within required setbacks. Mr. Minkoff originally got a building permit for the work in 2004, but did not complete it. Since then, according to Mr. Newbold, the village’s setback restrictions have become more restrictive and improvements already completed are in violation of the new setbacks. The board approved his request, but said that all sheetrock, insulation, and other interior improvements to the second floor of the garage are to be removed and the space used only for storage.

Michael and Treva De Leeuw of 41 Cross Highway were granted a variance to keep a generator within the required front-yard setback on the condition that its use be limited to power outages and a weekly 20-minute test period to be performed midweek.