The East Hampton Village Zoning Board of Appeals denied an application of the Jewish Center of the Hamptons that appealed the building inspector’s interpretation of “residential property” as it pertains to the exemption of driveways from a parcel’s coverage calculation when it met on Friday. Attorneys for the center, however, intend to pursue the matter further with an Article 78 proceeding.
The center, on Woods Lane in a residential district, sought a special permit to enclose two porches to add 788 square feet of gross floor area to the main building on the 3.3-acre property. The applicant appealed the building inspector’s interpretation that the term “residential property,” as used in a section of the code that reads “driveways serving residential property, walkways over dunes, and a postman’s walkway are exempt from coverage,” is limited to property containing residential uses, and does not apply to all properties located in a residential zoning district. The applicant would also have needed a coverage variance to conduct the alterations.
Lenny Ackerman and Linda Margolin, attorneys speaking on behalf of the applicant, argued that the building inspector’s interpretation was arbitrary, and that the code is ambiguous as to the intent of a subsection pertaining to driveways serving residential properties.
Mr. Ackerman had 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.
In a continuation of the hearing on Feb. 13, Mr. Ackerman was succinct in his remarks. “There are 50-plus properties in the village that are impacted by the determination you’re to make on the interpretation in this hearing,” he told the board. “Why is this so important? Because every one of these, in every category, starting with the bed-and-breakfasts, the businesses, the not-for-profits, the schools, the religious institutions, the museums, are all impacted by this interpretation.”
The village, he said, “clearly is not intent on clarifying the language in the statute. You can do that. You have the authority to do that.” The policy that the Building Department was applying to nonresidential uses or structures in a residential zone was not supported by the code, he argued. “When you look at the inconsistency that we pointed out in the application of this, it demonstrates clearly the ambiguity,” he said, “and based upon the ambiguity rules that apply to the interpretation of municipal legislation,” the wording in the code should be clarified.
In an email to The Star following the zoning board’s determination, Ms. Margolin reiterated that “it’s clear that the wording of the code is ambiguous since over the course of the past two decades the zoning code has been interpreted to allow nonresidential users to exclude driveways, parking areas, or both from lot coverage calculations.”
“We don’t think the Z.B.A.’s interpretation is what the village board intended,” she added. “The practical effect of the Z.B.A.’s determination is that nonresidential users in residential zones are allowed less coverage than residential users, and the interpretation also discourages nonresidential users from adding off-street parking.”
