It might have been easy to overlook an application in front of the East Hampton Village Zoning Board of Appeals on Friday to legalize a patio that was built within a setback. However, it came with history, the flouting of both Z.B.A. and court decisions, and allegations of influence by a recused member of the board. Suddenly, a simple brick patio was intriguing.
Linda Margolin, speaking for 25 Cross Highway, a limited liability company that owns 25 Privet Lane, acknowledged that her client built the patio despite a previous denial from the zoning board and despite the fact that the denial, when challenged, was upheld by an appeals court. She said the new application was different enough from the last that it deserved to be heard.
“It’s not a good look for an applicant to say I already built it, but we also know that’s the meat and potatoes of this board. It happens very often,” she said.
“The applicant shows almost incredible effrontery in resubmitting an application which, in its essentials, is fundamentally the same as that denied by the board in 2021,” the attorney Richard Whalen wrote to the board on behalf of Bonacker Property, L.L.C., which is controlled by Joe Rose, a board member who recused himself from the deliberations. “The existing brick patio was built in blatant defiance of the zoning board’s July 14, 2021, determination. Today the applicant offers to cut off the corners of the brick patio in order to slightly improve its front yard setbacks and to be able to argue that this is not exactly the same patio that the board denied in 2021.”
At the beginning of the hearing, Ms. Margolin asked John McGuirk, the chairman of the board, to note and clarify the reasons behind Mr. Rose’s recusal. In a 2021 letter to the board, Mr. Rose had explained that his children, through a trust, own a vacant parcel across from 25 Privet Lane and that he held a minority interest in the property as well.
“He believes he will be directly affected. I believe that was the reason he gave last time. Is that correct?” asked Ms. Margolin.
“That is correct, I believe,” said Mr. McGuirk.
“And is that his continued reason for recusal?” asked Ms. Margolin.
“Am I on trial here, Ms. Margolin?” shot back Mr. McGuirk. When she pressed, he directed her to Tim Hill, the village attorney, who did not make an audible response to her question.
“We’re starting this hearing off all wrong; I can tell you right now,” said Mr. McGuirk.
“Respectfully, I think the prior decision was borne out of consideration for a neighbor who is a member of this board,” she said. “Bonacker Property is vacant and objections consist of two things. First, it will change the character of the neighborhood and second, the noise from the brick patio will be annoying.”
But she argued that while the patio was approximately 13 feet from the road on one side, and 21.4 feet from the road on the other (35 feet is the required setback) it would be invisible from the road, so the character of the neighborhood would not be changed. Second, she said the code defines loud uses, but dining outside on a patio is not one of those uses. “I’m sure all of us have sat outside and dined at some point. The objecting neighbor is asking you to determine that people eating on a terrace is going to be a disturbance even though they are 170 feet from their front door and there is no house on that lot yet.”
“No other neighbor has objected, and they are all quite a bit closer,” she added. (In fact, another had written in support of the patio.)
Mr. Whalen argued the patio was a self-imposed difficulty and too similar to the last application to warrant a separate decision. “The fact they built it after it was denied and after it was sustained by a court is extraordinary in my mind,” he said. The real reason to deny it, however, was because the entire patio is in the 35-foot setback, and it could be placed behind the house where there was room.
Only one board member, Phillip O’Connell, chose to speak on the proposal. “I just have one comment. It is a significant variance that is being asked for.” The hearing was closed.
