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A Wrinkle in the Town Code

Thu, 03/30/2023 - 12:08

A puzzle of an application involving two adjacent parcels, a bunch of portable restrooms, access to them, and a house in a commercial neighborhood came before the East Hampton Town Planning Board on March 15.

Joe Cucci owns both 74 and 76 Queen’s Lane in East Hampton, as well as Head Quarters Portable Restroom Solutions. In May 2020, he asked the town’s Planning Department for permission to create a fenced-in, gravel-covered storage area for Porta-Pottys, behind the residence at number 74. Planners noted in a memo that the area had been used informally as storage since at least 2004.

The immediate issue is that the house, even though it is on a commercially-zoned lot, is the parcel’s only legal use (though it pre-exists town zoning and is classed as nonconforming). Due to a wrinkle in the town code, if a residence is on a commercial lot, it’s the only allowed use, even though commercially zoned lots typically are allotted two uses.

Unless the zoning board of appeals granted him a variance for the house, Mr. Cucci would have been forced to tear it down and evict its longstanding residents, right in the middle of a housing crisis, just to continue running his business. Last August, that board granted the variance.

Next, Mr. Cucci had to come up with an access plan to the storage yard that wouldn’t involve using the driveway used by the residence. His lawyer, Richard Whalen, proposed an “undefined access agreement.”

“The point was not to fix a particular location, because that property might change someday — maybe somebody comes in with a building permit,” Mr. Whalen argued. Leaving it undefined, he said, gave Mr. Cucci more flexibility.

The Planning Department disagreed, and recommended that Mr. Cucci provide a site plan for 76 Queen’s Lane, depicting the exact route of the proposed easement. On March 15, the planning board backed up the Planning Department.

“Could you see that would be a dangerous precedent to create?” asked Samuel Kramer, the board chair.

“I don’t see it at all,” said Mr. Whalen.

“It only works because both parcels are owned by the same guy,” said Mr. Kramer.

“Pretty much,” said Mr. Whalen.

“You ever sell...” Mr. Kramer began.

“A new buyer could do what he wants, as long as he provides a 20-foot easement,” said Mr. Whalen, finishing Mr. Kramer’s thought.

But Ian Calder-Piedmonte, another board member, picked up where Mr. Kramer left off, also doubting the benefit of leaving the easement undefined. “If it’s not defined, it’s not fair to the other property owner. If you’re trying to preserve future development, maybe you don’t have the access coming through the middle of it.”

“That’s why you have a site plan on a property if you’re going to be providing cross-access, to work out things like this,” said Eric Schantz, assistant town planner. “That’s why you don’t set an easement that’s undefined. A site plan, among other reasons, establishes where access, and where on-site circulation, is going to be.”

Mr. Whalen reluctantly agreed, allowing that the best plan would traverse the shortest route across 76 Queen’s Lane to the fixed entrance of the storage facility at 74.

Something he couldn’t agree to, however, was the planning board’s suggestion that the additional use granted by the Z.B.A., at number 74, triggered a need to update the residence’s sanitary system.

“This is new. It’s the kind of thing that annoys people, because three years into an application, you don’t want to be hearing this,” said Mr. Whalen. “We’re not changing the house at all. The new use is a storage use, with no building and no on-site sanitary, so it’s kind of illogical to upgrade the sanitary on the house.”

“Technically, this needs to be upgraded,” said Louis Cortese, a planning board member. “If there’s a technical reason to upgrade, I would fight for that to be done.”

“This might be different if we were near surface waters,” rejoined Mr. Whalen. “The benefit of a low-nitrogen system in this neighborhood is pretty minimal.” It would be expensive for his client, he said, and not much benefit to the town. He asked the board to refer the matter to the chief building inspector, Joe Palermo.

The board agreed to do so, but as of yesterday they had yet to hear back from Mr. Palermo. Members also agreed, at the suggestion of Mr. Calder-Piedmonte, to write to the town board arguing that one residential use and one commercial use should be allowed on the same lot in a commercial zone.

“Can anyone see a reason not to allow one residential and one commercial use in a commercial zone?” Mr. Calder-Piedmonte asked. Given the lack of affordable housing in the town, no one could.

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