Is the glass half full or half empty? Depends on perspective. The same applies, it would seem, to land development. When the East Hampton Town Planning Department considers an application, should it give more weight to the proposed improvements to a parcel and its surroundings, or to the dictates of the town zoning code?
A proposed teardown project at 50 Oyster Shores Road, which came before the zoning board of appeals at a public hearing late last month, brought the question to the forefront. The homeowners, Pamela and Andrew Kaufmann, are seeking a natural resources special permit and six wetland and coastal setback variances.
Their house, which they have owned since 2012, was built in 1959 on Three Mile Harbor, 25 years before wetland setback laws were established. By today’s standards, the house is almost completely nonconforming. The pool juts out onto the beach at Three Mile Harbor, separated only by a retaining wall, and an aging septic system is located steps away from the water.
The Kaufmanns propose to demolish the old house and build a new one, more than double its size, in a new location. The pool would be moved landward, as would an upgraded septic system. The shoreline along the harbor would be restored, according to the application, and native plantings added to the parcel, which currently has none.
Jon Tarbet, the lawyer representing the Kaufmanns, told the Z.B.A. it was a “home run of an application.” The Planning Department staff, however, recommended that it be denied.
“You can’t argue that this is not significantly better than what’s there now,” Mr. Tarbet told the board.
With that perspective, any change can be seen as a gift, both to the town and to the harbor. But is the guiding principle to make a bad situation better, or do town zoning regulations take precedence?
“We have to incentivize people to make these changes,” Mr. Tarbet argued. “When they’re not given appropriate relief from the zoning board, they just make better what they have, and you don’t get these huge environmental benefits to Three Mile Harbor.”
“If this were vacant land,” he continued, “it would probably be considered an aggressive application, but you can’t look at it as vacant land. You have to look at it as land developed before zoning, which would violate just about every zoning provision we have nowadays, and we’re making significant improvements.”
Brian Frank, the Town’s chief environmental analyst, disagreed. “The Planning Department is not set on objecting to any variances on this lot,” he said. “That would be irrational. What would be rational, and consistent with the zoning code, is maximizing the setbacks to the protected natural features and making the development on this property more commensurate with its constraints. That is what will protect the character of Three Mile Harbor and Oyster Shores Road.”
Mr. Frank is saying, in effect, that the property is too sensitive for the size of the Kaufmanns’ proposal.
“The applicant can get the benefit of new construction, a newer house, a larger house, without these magnitudes of variance and without this very large footprint on a constrained property,” he said.
The new septic system, for example, would require a variance of 125 feet. Mr. Tarbet asked board members to imagine themselves swimming in front of the house as it now stands, knowing how close they were to the septic system, or knowing that it was 125 feet away.
“I don’t think the nexus for us looking at [the application] should be whether I want to swim there or not,” said Roy Dalene, the board chairman.
“Jon had mentioned it meets all [Harbor Protection Overlay District] regulations,” said Mr. Frank. “The 200-foot sanitary setback is an H.P.O.D. requirement, so saying it meets all of H.P.O.D. requirements is just inaccurate.” That 200-foot setback, he told the board, was added to the town code specifically “to maintain or improve surface water quality in East Hampton’s major harbors, creeks and ponds.”
“If the Planning Department wants to object,” Mr. Tarbet responded, “they should analyze it in relation to the code. They should say if there’s a net positive or net negative. I’m offended the Planning Department objects to these things.”
Mr. Frank then informed the Z.B.A. that he’d been negotiating with the Kaufmanns for four years or more. Originally, he said, they had proposed to reconstruct the swimming pool. “That was a benefit I felt comfortable supporting,” he said. Later, they sought to build an addition to the front of the house, which was also deemed reasonable.
“When [the current] application was submitted, I was surprised it was for a redevelopment of this scale,” Mr. Frank said. “Those maximums are not a matter of right when you lack a conforming building envelope.”
The question isn’t whether or not there’s a positive effort being made here,” said Ed Johann, a board member. “The question is whether or not it might have been a better positive.”
The Z.B.A. voted unanimously to close the hearing.
