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Nightclub Conversion Is Not Considered New Building

Thu, 05/18/2023 - 11:35

Despite questions from some members of the East Hampton Town Planning Board, Joseph Palermo, the town’s chief building inspector, said a large expansion of the building at 44 Three Mile Harbor Road, which for decades has operated as a nightclub, would be considered a reconstruction, and not a new building entirely.

The planning board had asked Mr. Palermo on May 3 for a determination on the matter and in making one on Friday, he did not specify if any part of the old building must remain to be considered a reconstruction, or if the foundation alone would suffice. He said, “a nonconforming structure can be reconstructed,” and then cited a piece of code that states, in part, “a building which lawfully exists on a nonconforming lot, may be reconstructed in whole or part, provided the ‘degree of nonconformity’ is not thereby increased.”

This determination helps the owners, Cilvan Realty, because the old structure benefits from its pre-existing, nonconforming location on the building parcel. It is only seven feet from one property line.

Cilvan has been at the project for a couple of years. Because it is changing the use of the building, from a nightclub to a mixed retail, office, and affordable apartment use, and increasing its size, it needs planning board approval.

The zoning board of appeals issued two variances for the project in January 2022 — one to allow only 48 parking spaces when Cilvan needed 59 and another for the second-floor apartments to be located about 24 feet from the eastern lot line when 50 feet was required. It denied a third variance that would have allowed second-floor roof decking to be only 7.8 feet from the same property line.

The planning board also asked Mr. Palermo’s opinion on a second question brought up by one member, Randy Parsons, about whether Cilvan Realty needed another variance from the Zoning Board of Appeals, since a portion of the proposed reconstruction, including a large increase of the building’s gross floor area, was in a setback area.

Mr. Parsons said the Z.B.A. hadn’t given Cilvan a variance for a “substantial expansion” of the pre-existing nonconforming building. He said the code defined a substantial expansion as any that increased the gross floor area or value of a structure by 50 percent or more. “It’s clear that this is a substantial expansion,” he said.

“I’m not even sure that’s disputed,” said Ian Calder-Piedmonte, another planning board member. “This has been seen as a positive change of use. So, there’s always been this thing of, ‘Okay it’s a bigger building, don’t love it, but we don’t want a nightclub.’ “

Again, Mr. Palermo’s determination benefited Cilvan Realty.

“The approval of the gross floor area is implied with the variance [previously] issued providing the total G.F.A. added does not exceed the total G.F.A. for that lot,” he wrote.

“I think it’s not ready for approval,” said Louis Cortese after his fellow board member, Sharon McCobb, said she was comfortable with the application.

Mr. Cortese argued that the application was unique, in that three boards, the architectural review board, zoning board, and planning board, had all been judging its merits simultaneously.

“I’ve learned a lot from the A.R.B. meetings, and from the public comments,” he said. At the public hearing on April 12, three people spoke out in opposition to the plan, questioning whether the applicant should be forced to build a new conforming building if it tore down the old one completely.

Mr. Cortese also said traffic was a concern and he felt that the structure should be judged within the context of a corridor study, commissioned by the town. A comprehensive traffic study of the Springs-Fireplace corridor, with an eye on improving pedestrian safety, is a component of the study that recommends encouraging low traffic uses on that road. The study hasn’t been updated in two years.

But Mr. Cortese’s real contention was whether the proposed work could be defined as a reconstruction. “If they end up tearing down most of the existing walls, because they’re too old, it wouldn’t be a reconstruction it would be a complete new construction which means they’d have to yield to existing setbacks,” he said.

However, according to Richard Whalen, the attorney for Cilvan Realty, “The code doesn’t say anything about keeping a percentage of the building,” which concurs with Mr. Palermo’s determination. In a Planning Department memo, Tina Vavilis LaGarenne, a principal planner for the town, writes “the applicant has also submitted the documentation from the project engineer affirming that the foundation is expected to handle the load of the proposed two-story structure.”

With the building inspector’s determinations in hand, and a public hearing behind it, Cilvan’s application could soon be voted on by the planning board. Mr. Whalen said his client had asked to be removed from last night’s planning board meeting in order to tweak the design of the building to meet the pyramid law restrictions.

Usually, a board has 62 days after a public hearing to render a decision on an application, but since Cilvan has requested more time for redesign, the board will have an extra five weeks and three potential meetings to mull over the designs. Mr. Whalen hopes for a vote at the July 12 planning board meeting.

 

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