Cilvan Realty, a limited liability company that owns 44 Three Mile Harbor Road in East Hampton, went before East Hampton Town Planning Board once again last week because of inaccuracies in its application, which was approved in October. The owners want to turn the old nightclub and restaurant building on the property into one that would have office and retail space and two affordable apartments. The problem is not so much what it is proposed to have as what it does not currently have.“The previous proposal had assumed that the basement was existing. However, it is not,” Jeremy Samuelson, the outgoing town planning director, said at the Aug. 14 meeting.
Based on Cilvan’s submissions, Joe Palermo, the town’s chief building inspector, had determined that the project constituted a reconstruction of a pre-existing nonconforming building. But in fact, there was no basement under a significant portion of the structure.
Had that been shown in the submissions, Mr. Palermo’s determination might have been different.
According to town code, a reconstruction of such buildings is allowed. However, if Mr. Palermo deemed it to be a new construction, the building would have to adhere to modern zoning laws, including 50-foot setbacks to property lines, or get a variance from the zoning board of appeals. The building is now less than eight feet from its eastern property line.
So how did this happen?
Frankie Campione, principal of CREATE Architecture, who adopted the project after the previous architect, Pamela Glazer, left it, explained. The owner “is not a developer by trade and didn’t understand the necessity of having us get into the building early and survey the existing conditions,” Mr. Campione said. After the approvals came through last October, Mr. Campione was finally allowed to enter. “We get there, and we’re stunned,” he told the board. Not only was there no basement under more than half of the building, there was a change in grade in the building that was not depicted on the original architect’s plans.
“We apologize for not realizing earlier that there was no basement under most of the existing building,” wrote Rick Whalen, the attorney for Cilvan. At the meeting, he tried to minimize the site plan modification request.
“There are no setback requirements for basements,” he said, and if they’re only used for storage and mechanical equipment, they don’t count toward a building’s gross floor area, or G.F.A., he argued. Further, he asserted, a building only increases in nonconformity if additional G.F.A. is put in a setback area. However, because the basement’s area doesn’t count toward the building’s G.F.A., the nonconformity is not increasing.
The building’s basement wouldn’t impact neighbors, he continued, because they have a large backyard, and the basement wouldn’t extend beyond the footprint of the existing building. Comparing the new building to what’s there now (this summer a late-night pizzeria, named Little Charlie operated until 4 a.m. on Friday and Saturday nights), he said, “There is no way they would prefer the status quo to what we’re proposing.”
The Planning Department, in a memo, said that Mr. Whalen should return to the Z.B.A. He disagreed. “There’s literally nothing for us to modify in the zoning board. If I went to the Z.B.A., what would I ask them to modify?” Cilvan had previously received two variances unrelated to the nonexistent basement: one for parking, and a setback variance for apartments on the second floor of the proposed building.
“It’s obviously unfortunate and embarrassing that we’re back in front of you for this, but I don’t see it as a major issue. The memo asks for a covenant, we’re not going to die on that hill. Obviously if you want a covenant, we’ll give you a covenant, but it’s really a waste,” Mr. Whalen said. (The Planning Department suggested that if the planning board agreed to the new basement that its only allowed use be for storage and mechanicals in perpetuity.)
Samuel Kramer, the board’s chairman, largely disagreed with Mr. Whalen.
“In fact, you had a non-existing, nonconforming use. You had a basement that didn’t exist, and we approved it. But in my opinion, when you’re dealing with a pre-existing nonconforming use and trying to get that application past this board, it’s got to be right, and it wasn’t right. It wasn’t right when it was presented to us, and we analyzed it on the basis of something that wasn’t right. I don’t see that this application should be modified. In my view, you go right back to the starting gate and do it again.”
“The foundation is not what the building inspector thought it was when he made his determination,” said Louis Cortese, a board member, who agreed about starting the application over. If the building inspector’s determination is in error, based on submissions that were wrong, then the reason for approving the project was wrong too.
“If they looked at that foundation, what did they look at?” questioned Sharon McCobb, the vice chairwoman of the planning board.
“They didn’t!” answered Mr. Kramer.
“If we had considered digging out a whole new basement, at this point we would have done a lot more research,” said Ms. McCobb. “For me, it’s a huge mistake.”
“If we were to go forward and you would not modify the application at all, this building would have zero basement. Not for mechanical, not for storage. Are you suggesting that’s what you want?” asked Mr. Whalen.
“I’m suggesting we want an application based on what the conditions are,” said Mr. Kramer.
