Earlier this month, in a hearing that could have implications for multiple properties, the East Hampton Village Zoning Board of Appeals considered the Jewish Center of the Hamptons’ appeal of the building inspector’s interpretation of “residential property” as it pertains to exempting driveways from a parcel’s coverage calculation.
The center, located on Woods Lane in a residential district, is seeking a special permit to enclose two porches, which would add 788 square feet of gross floor area to the main building on the 3.3-acre property. One enclosed porch would be used as an office, the other as classroom space.
The building inspector has ruled that the term “residential property” is limited to property containing residential uses, and does not apply to all properties located in a residential zoning district. The Jewish Center, which would also need a coverage variance to conduct the alterations, is appealing his decision.
Lenny Ackerman and Linda Margolin, attorneys speaking on behalf of the applicant, argued that the building inspector’s interpretation is arbitrary, and that the code is ambiguous as to the intent of a subsection pertaining to driveways serving residential properties.
Mr. Ackerman told the board on Jan. 9 that “there are numerous religious institutions in the village who are subject, potentially, to this coverage issue.”
Ms. Margolin added that the New York State Court of Appeals ruled long ago that “zoning regulations that are ambiguous must be construed in a way that favors the property owner and against the municipality.” The first question to ask, she said, “is whether or not ‘residential property’ as used in this section is an ambiguous term” — and it clearly is, she said.
The zoning code pertaining to coverage stipulates that “the maximum permitted coverage for all structures on any lot or parcel of land in a residential district shall be 20 percent of lot area.” The subsection cited by the applicant states that “driveways serving residential property, walkways over dunes, and a postman’s walkway are exempt from coverage.”
“In the context of this section alone, we think it’s pretty clear that ‘residential property’ is a reference to the prior subsection of this paragraph,” Ms. Margolin said. “That is to say . . . when you calculate coverage on property in a residential district, that you don’t count the coverage attributable to driveways.”
The village’s current comprehensive plan, adopted in 2002, “suggested that the village should consider enacting laws that help address the proliferation of structures on residential properties,” Ms. Margolin noted, with the 20-percent maximum for residential districts. But “at the same time the village enacted a very comprehensive definition of ‘structure,’ it was clear that things on residential properties that would immediately make virtually every residential property in the village exceed the permitted structure were driveways,” hence the exemption for driveways and postman’s walkways.
In 2017, she continued, the village board restructured the zoning code, defining a “postman’s walkway” as connecting a driveway or a street to a door in a dwelling. “It didn’t provide a definition of driveway, but took that exemption for driveway and postman’s walkway and now put it in the section that restricted coverage for residential districts and for commercial districts.”
The village board, Ms. Margolin said, “was clearly aware of the fact that it needed to create a definition of postman’s walkway if this was the way they were going to change the code, because that assured them that the postman’s walkway would be for a residential use. They did not do that for a driveway. We think that the history shows that it was not intended, when the change was made in 2017, to restrict nonresidential-use driveways in the sense that they would count toward the 20 percent coverage.”
The Z.B.A.’s own standards for a special permit, she said, “talk about the adequacy or need for bituminous surface parking.” The code clearly demonstrates a concern that driveways and parking on nonresidential-use properties in residential districts are adequate for circulation and parking, she said, “and because the 20-percent lot coverage is so restrictive . . . virtually every property that’s either nonconforming or special permit, if you count the driveway, they need a coverage variance.”
Further, when the state granted villages authority to enact zoning codes, it required uniformity: “That you have to treat all property within a zoning district the same way.” But in 2004, the Z.B.A. granted a coverage variance to the 1770 House — a nonresidential use — “and the coverage figures were based on a survey that not only didn’t include coverage that was attributable to the driveway, but the survey specifically said it didn’t. . . . In 2004, with essentially no change in the law, driveways did not count for the 1770 House when they applied for and got a coverage variance.
With respect to the Jewish Center, she said, the Building Department is “creating a policy that is not supported by the current version of the code. I believe that it’s this board’s job to interpret this term in a way favorable to the property owner against the village.”
Jon Tarbet, an attorney representing nearby property owners, objected to the applicant’s request that the board overrule the building inspector. “One thing that wasn’t discussed by the applicant’s presentation is that on a residential property, a driveway is what you think it is: it’s a driveway with a couple of parking spots. On a commercial property, a driveway could be a lot of parking.”
The applicant, Mr. Tarbet said, argues that use of the term “residential property” is shorthand for “residentially zoned property,” when in fact, he maintained, there is no ambiguity in the code. “If you adopt the applicant’s argument, which is that ‘residential property’ really means ‘residential zone’ . . . it would allow commercial properties in residential zones to not count parking and driveways. But counterintuitively, a house in a commercial zone would have to count their driveway, which doesn’t seem to make sense.”
The code is not ambiguous with respect to coverage in nonresidential districts, Ms. Margolin countered, but suggested that the subsection detailing the exemption for “driveways serving residential property” is. “Was it intended to set a separate standard only for residential-use properties in residential districts?” she asked. “Or was it intended to modify the paragraph that came immediately before it using a shorthand term — ‘residential property’ — to refer to the term in the immediate preceding paragraph that says ‘property in residential districts’?”
Mr. Ackerman told the zoning board that “we’re burdening you to make this interpretation, to send a message to the village board that they need to clarify the statute and make it clear.”
Notwithstanding the zoning board’s determination, he continued, the center can apply for a coverage variance, “but I think this is an important question. It’s either going to be decided in an Article 78, or it’s going to be decided by a change in the law clarifying whether a nonresidential use in a residential zone should be treated differently. Right now, our statutory scheme doesn’t provide for that with clarity.”
The hearing was left open and will be revisited.
