Zoning Diminished

The East Hampton Village Zoning Board of Appeals appears poised to deal a precedential death blow to a fundamental portion of local land-use law. But before its members allow a landscaping company to take over a residentially zoned lot at 103 Montauk Highway, they should take a very close look at the village code and ask themselves whether what they are being asked to approve meets the letter and intent of the law with regard to when and under what circumstances a pre-existing, nonconforming use can be considered abandoned.

A group of eight neighbors of the former Players Club restaurant have protested that allowing the landscaper there would violate village law because the property is zoned for residences and reverted to that use when the eatery closed more than a year ago. This question is not unique to this property, which is why this matters, nor are we the only ones to point it out.

On North Main Street, in East Hampton Town jurisdiction, a similar issue involving a planned convenience store at the Empire Gas property is being fought out in federal court. In Amagansett, the Inn at Windmill Lane was improperly allowed to expand a long-unused rooming house, which should have reverted to single-family occupancy. And farther east, the Montauk Beach House, despite being in the wrong zone, was allowed to add full meal service, a bar, and live music to its pre-existing, nonconforming hotel on only the most slender of justifications. Meanwhile, the Dunes drug and alcohol rehabilitation clinic in Northwest Woods and an outpatient facility in Springs are operating despite glaring questions about their legality under zoning.

It is immaterial that the former Players Club site at 103 Montauk Highway had been the site of various restaurants since the 1920s: That use ended when the restaurant ceased operation and another eatery did not move in within the required 12 months. Lawyers hoping to win a Z.B.A. permit for the landscaping company have made the ludicrous claim that because the joint’s fixtures were never removed its use never ended. Unfortunately, they appear to have found sympathetic ears among members of the village Z.B.A.

Dubious, too, is that in the initial hearing on the application, Lys Marigold, the Z.B.A. vice chairwoman, said that a landscape business would be “less nonconforming,” something that suggests a misconception of the tenets of local zoning itself.

The notion that it would be legally acceptable to make a property’s use somehow less nonconforming is in error. Zoning codes, including East Hampton Village’s, list what can and cannot be done on residential lots — a simple yes or no concept. Restaurants are nonconforming on house lots, as are many uses, from office buildings to slaughterhouses. There are no gradations provided, a la Orwell’s pigs, that some uses are better than others. Physical setback issues, for example, can be made less nonconforming, but zoning boards should find no latitude in the law on questions of the purpose to which a property is put.

One can see where these views come from — savvy lawyers are adept at bending the rules and offering imaginative interpretations to help their clients obtain maximum financial return. What is a shame is the repeated bobble-headed acquiescences of the various boards and their supporting staffs.

There is still time for the zoning board to take a step back; the matter is to be discussed again at a continued hearing tomorrow. We strongly suggest that the Z.B.A. members ask themselves just what was the intent of the village when it created the portion of the zoning code that insists that pre-existing, nonconforming uses be eliminated when they cease to operate. If they look closely, it should be obvious that the purpose was to gradually concentrate businesses and other intensive-use activities in commercially zoned centers, reduce sprawl along the roadways, and, foremost, protect the interests and rights of ordinary residents to peace, quiet, and the undisturbed enjoyment of their properties.

If the landscaper or any other nonconforming business wants to take over 103 Montauk Highway, the thing to do would be to apply to the village board for a zone change; it is simply not up to the zoning board in this case to rewrite the law on its own.