ZONING BOARD: Skeptical of Two Subdivisions

Owners of large lots are often compelled to divide their land into smaller lots for the sake of financial profit, but the East Hampton Village Zoning Board of Appeals does not always consider personal financial gain a valid reason to approve a subdivision application.

Hearings earlier this month on two separate subdivision applications met with stiff opposition from the zoning board's chairman, Andrew Goldstein, who said both were profit motivated. "I don't feel we should be granting variances for that reason," Mr. Goldstein said during an Aug. 12 hearing on Ira M. Barocas's plan to divide a one-acre lot on Montauk Highway into two half-acre parcels.

His response was the same to Sea Spray L.L.C.'s request to divide a 3.5-acre lot, also on Montauk Highway, into two lots, of 80,000 square feet and 59,228 square feet.

"Every variance we issue weakens our zoning code," Mr. Goldstein said on Aug. 12. "I don't think we should be bending over to issue variances."

In Sea Spray's case, one of the lots would meet the two-acre zoning requirements, but the other would not. Mr. Barocas's property, however, is in an area recently upzoned from half-acre to one-acre residential zoning, so neither parcel would comply with the rules.

According to Mr. Barocas's application, he first began the process of subdividing his land in 2001, shortly after buying the property, which is next to the Getty gas station and partially outside of village limits. To do so, he would need permission from the town planning board, the village zoning board, and the Suffolk County Health Department.

He met with the village's planning consultant, Gene Cross, and was told, his application says, that he should ask for Health Department approval before turning to the village. In October 2004, Mr. Barocas met with the village building inspector, Tom Lawrence, who told him that the subdivision "did not present problems under the code," according to his application.

For groundwater protection purposes, the Health Department generally prohibited parcels smaller than one acre in that area, even though village zoning allowed, at the time, for half-acre lots. Landowners could buy land elsewhere in the town, agree not to develop it, and transfer the development rights to the village property. In that way, Mr. Barocas might have been able to get Health Department approval. But late last year, the village upzoned land north of Montauk Highway and west of Main Street.

Mr. Barocas's attorney, Robert J. Savage, said last month that no village official ever told his client about the pending upzonings. Village code used to provide that applications pending before any village board would not be affected by changes to the zoning code.

Even though Mr. Barocas submitted his application after the upzonings took effect, he might have been excused from having to comply with the new regulations, but for another change to the code in June. Since then, only those applications pending before the planning board are exempted. Others, such as Mr. Barocas's, are subject to the laws in place at the time a determination is made.

"He didn't create the hardship, it was created by the upzoning," Mr. Savage told the zoning board on Aug. 12. He said his client "innocently was steered the wrong way by the building inspector" and that Mr. Barocas would agree to a smaller building envelope on the property, if the lot size variance were granted.

"If this application had been formalized a week earlier, we wouldn't be here," Mr. Savage said.

"I don't feel, as a member of the zoning board, bound by statements made by the building inspector," Mr. Goldstein said. "Applications get caught in these quandaries and that's just the way it is."

Not only was Mr. Goldstein opposed to granting a variance for a "profit-oriented" benefit, but he also said an additional house in an already developed area would have a negative impact on the neighborhood.

Deciding that the negative impacts outweighed any possible benefits, the board asked Mr. Barocas to complete a more detailed environmental review if he wishes to pursue the subdivision application.

The Sea Spray lot is also on property that was upzoned at one time. If the board were to agree to the subdivision the smaller of the two lots would still be larger than 16 of 17 parcels in the immediate area, the attorney Jonathan Tarbet of East Hampton Land Planning told the board on Aug. 12. Mr. Tarbet's father, also named Jonathan Tarbet, is the owner of the Sea Spray L.L.C. lots.

The property already contains two houses. If it were subdivided, the driveway for both would be on Cove Hollow Road, rather than on Montauk Highway. Moving a driveway from Montauk Highway to Cove Hollow Road would, Mr. Tarbet said, have a positive impact on the neighborhood.

"You mitigate something on Montauk Highway but create something on Cove Hollow," Mr. Goldstein said. If the property were divided in two, he said, Mr. Tarbet could replace the two modest houses there with two very large houses. "You take what is essentially a rural parcel and create a suburban parcel." He suggested Mr. Tarbet build one "very large house as opposed to two very large houses."

"You should develop it as you can legally develop it now," Mr. Goldstein said. "There was a legislative intention to have larger parcels in this neighborhood."

"But 16 of 17 parcels would be smaller," Mr. Tarbet argued.

Although a draft environmental assessment form prepared for the board by Mr. Cross did not identify any significant impacts, the board seemed prepared to ask Mr. Tarbet and Sea Spray to prepare a full environmental impact statement.

When Mr. Tarbet said it was hard to see how the board could make such a determination, Mr. Goldstein responded, "I guess we'll just see what comes up."

Mr. Cross was to draft a final environmental impact statement after the hearing, taking the board's comments into consideration.

In Aug. 15 letters to the zoning board's attorney, Linda Riley, Mr. Tarbet urged the board to reconsider and wrote, ". . . for the zoning board to deny my clients' area variance, they must have a 'character of the neighborhood' or environmental concerns that outweigh the presumed benefit to the applicant." He asked Ms. Riley to monitor Mr. Cross's revisions to the environmental assessment form "to ensure that the answers are not changed to create an 'ends justifies the means' approach."

The zoning board has yet to make a decision on the application.

The board will meet again tomorrow at 11 a.m. at the Emergency Services Building on Cedar Street.