When Is a Garage a Garage?

    The East Hampton Village Zoning Board of Appeals had a lengthy back-and-forth with the former chairman of the board about the definition of garages in the village code and how they can be used.

    Mark Smith and Betty Petroski of Conklin Terrace, where zoning calls for acre lots, have applied for variances to allow more coverage of their 9,982-square-foot parcel than the code allows as well as a generator and the continued maintenance of an air-conditioning condenser and a tankless water heater. At issue, however, was whether what the applicants call a garage could hold a car.

    Andrew Goldstein, an attorney with Phillips Nizer, who was not reappointed as the board’s chairman when his term ended in June, represented the applicants. The condenser, generator, and water heater, he said, are small and quiet, and will neither affect the character of the neighborhood nor be injurious to neighbors, who had submitted letters supporting the application.

    The existing physical structures on the property were in place at the time of the applicants’ purchase, in 2009. “This property received a C.O. [certificate of occupancy] for virtually all the coverage that’s in place at the time,” he said. “There is no detriment to any neighbor from this. None of the appliances, nor this coverage, are visible to anybody.”

    The certificate of occupancy lists a two-car garage, Lysbeth Marigold, a board member, said, but an earlier survey “mentioned it was a cottage, and now it’s back to being a garage when it’s clearly not a garage.”

    “It is a garage,” Mr. Goldstein answered. “A garage is a garage.”

    When they sought a building permit, Mr. Smith explained, the updated 2009 survey listed the 400-square-foot structure as a shed, a distinction he thought was immaterial. This triggered a violation from the building inspector, as the village code limits accessory buildings, with the exception of garages, to 250 square feet. The violation was later removed.

    “The building inspector came and looked at it and said it was a garage,” Mr. Goldstein said. “A garage can be used for any accessory use legal in the district.” But Ms. Marigold said there was no way a car could get in it. “You can sit in a garage, you can play Ping-Pong in a garage, you can watch TV in a garage,” Mr. Goldstein answered.

    The board was only seeking clarification, said Frank Newbold, Mr. Goldstein’s successor as chairman of the zoning board. “It does indeed say ‘garage,’ but in your application it says ‘contains no habitable space.’ By ‘habitable’ do you mean contains no sleeping space?” He noted that the structure has a heated floor, air-conditioning, wall sconces, and a ceiling fan. Mr. Goldstein responded, saying, there is no plumbing, no kitchen, and it is not a bedroom.

    “It has new French doors that open to the garden — very nicely done,” Mr. Newbold said. “It seems as if the applicant does indeed sit there. . . . It just seems ‘garage’ is a little misleading.”

    “I don’t know if the village wants to get in the business of micromanaging what people do in their houses,” Mr. Goldstein said. “If it does, I think that’s really problematic. It’s a garage. It’s not a cottage. . . . You could put a Smart car in there if you wanted to; you can’t put a Rolls-Royce in there. But if you say it’s not a garage, he’s got to get a variance for the size of that structure. I don’t think it’s required.”

    Reading from the village code, Linda Riley, the board’s attorney, said a garage is defined as an “accessory building or structure used for the storage of motor vehicles.” Mr. Goldstein interjected that the code  “goes on to say, ‘A garage may be used for any accessory use legal to the lot.’ ”

    Ms. Riley disputed that claim. “It says, ‘A garage may be used only for a purpose accessory to the permitted use of the lot.’ ” The code had been amended, she said, to prevent people from renting residential garages on a commercial basis.

    “He’s not only able to use a garage to store a car,” Mr. Goldstein said, proceeding to ask Ms. Riley if “all the people who are only using their garage for Ping-Pong or the storage of other things are doing an illegal thing?” 

    “. . . This is clearly not for storing motor vehicles, and it’s been turned over into a very nice space for I don’t know what — parties, or television, whatever. It is not primarily a garage anymore,” Ms. Riley said.

    “If he uses that garage for an illegal use in the district, that is an issue for enforcement,” Mr. Goldstein said. “You’re engaging in a lot of speculation in terms of how he’s going to be using the garage. . . . I’m not sure to what end this discussion is going.”

    Mr. Smith then addressed the board. “When I bought this house . . . everything was there,” he said, adding that the garage was heated. “All I did was change from electric heat to radiant heat.” He continued, “I put my bikes in there. I put garden stuff in there. I didn’t increase anything or intend to use it other than it was.” Defining the structure as a garage, a shed, or a cottage, he said, “appeared to me a semantics thing.”

    “There is no plumbing. Is it not habitable in terms of sleeping or bathing accommodations?” Mr. Newbold said. “If there is not, when is a garage not a garage?”

    The applicants, Ms. Riley said, have not asked for a variance to allow an accessory building larger than 250 square feet. They have a certificate of occupancy for a garage, “and he’s asking to maintain it as a garage. He’s going to have to live with what the restrictions are, whatever they are,” she said.

    But it appeared that the board was not going to ask the applicant to seek a variance for the size of the structure. Mr. Newbold said, “So I think we’re okay.” The determination is expected at the board’s next meeting, on Nov. 8.

    In other news at the meeting, the board granted Katherine Rayner coastal erosion hazard and dune setback variances that will allow construction of a 525-square-foot basement under a portion of her house at 85 West End Road. The board had heard explanations of the work to be done from multiple sources. Given the adjacent dunes and the history of erosion, excavation and construction will be done by hand and 21 temporary 16-square-foot pits will be dug around the perimeter of the new basement.