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Guestwords: Zoning’s Perfect Storm

Wed, 04/12/2023 - 17:11

Houston, we have two problems. A storm of aggressive and sometimes egregious development is upon us, and the East Hampton Town Building Department is unsupported. This is a disastrous combination.

Since Covid, there has been an influx of out-of-town spec builders, contractors, architects, and developers who have targeted our hamlets for development because of the explosive profit margin. There are also some reputable local spec builders who once showed great restraint and talent but now have dollar signs in their eyes. The penalties for disregarding zoning and planning laws are so minor that the new breed of spec investors is willing to disregard the laws and take a chance, in the name of maximizing their projects for maximum profit.

Part of the problem is a seriously understaffed, underpaid, and overworked Building Department. For decades, the department’s salaries have been abysmal. It’s a difficult job, with challenges of continuing education and high stress.

When the department is running efficiently, filing for a permit can take a few weeks. Recently, the delays are months and sometimes years for complicated applications. Residential projects require multiple site inspections. Foundation, framing, and insulation inspections are booked by the builder, and now the waiting list is months long. The result is construction projects sitting dormant, with work halted until the inspections are completed one by one.

Solution 1: The town needs to hire one to two permit examiners to review each application and ensure it is filled out correctly and that all required drawings, surveys, septic system plans, and paperwork are there. The town’s inspectors are now doing this sometimes on their own time on weekends.

Solution 2: The town needs to hire at least one plan examiner, who would review approved applications and look at drawings for code compliance. Many of the recent spec houses built here are riddled with noncompliance.

Solution 3: The department needs to draft an outline for architects and builders, noting key points of the town code that are being abused. For example, any space that is taller than 15 feet is counted twice in the square footage of the house. There are many massive spec houses that have not counted that space twice, resulting in the behemoth houses we see popping up everywhere from Ditch Plain to Wainscott.

Proof of correct square footage is needed. Square footage for a house is calculated from the outside of the perimeter wall. If you look at some of the drawings that are filed, many architects calculate this from the inside of the wall. This means that many of the houses that are being built are bigger than allowed.

A solution would be to require all permit applications to submit a hard copy of plans plus a digital copy. By digital copy, I mean an Autocad or Revit modeling file (not just a PDF), so the  department can open it and calculate the square footage as verification. The department needs a part-time entry-level draftsperson who is capable of opening these files and checking the square-footage calculations.

And then there’s the pyramid problem. I leisurely drove into the new Handy Lane, Amagansett, development. As an East Hampton Village architect for over 25 years, my observations are not positive. The pyramid law is an imaginary plane that angles from your property line on all four sides (think of the sides of the Egyptian pyramids) so that you do not build something that looms over your neighbors, which can affect sunlight, wind flow, privacy, and architecture.

A pyramid problem is evident at the huge cruise ship of a house that appears to have been beached at Ditch Plain. Why does this monstrosity loom over the parking lot? Was there a remediation of pyramid law requirements on this parcel?

Greenhorn architects are designing right up to the pyramid law line with no wiggle room. The builder comes in and decides to set the foundation six inches higher out of the ground and voilà, the pyramid is violated.

Solution: Pyramid violations are often discovered too late. During the framing inspection, there needs to be a pyramid diagram verification submitted by the surveyor. This certification needs to involve the surveyor, on site, reporting findings to the Building Department. The framing inspection could not be passed unless proof of pyramid law compliance is provided. This way if there is a violation it can be corrected before the house is finished, which would then kick the violation over to our also overwhelmed and backlogged zoning board. See a pattern here?

And let’s not forget the clear-cutting problem. Here is how it goes: A random developer or homeowner from elsewhere buys land, hires the cheapest architect possible, and maxes out the parcel in terms of every zoning aspect. Step one is to clear the lot so that it is just dirt. We have laws to prevent overclearing that are deliberately disregarded with anticipation of fines, zoning, planning board appearances (for lawyers to handle), and retroactive permits.

Handy Lane is the most obvious example of this. Please, as a community member, drive down it and take a good hard look. It had been a dead end with a forest filling the back half. The developer stripped and cleared the entire property. The developer has now been asked to “revegetate” what was cleared. I ask you, how are 50-year-old oak trees going to be revegetated? Was the developer fined? Does that mean we can all strip every tree off our land and then get caught and revegetate?

Once they cleared the lots, they had the slope to contend with. The developer added fill to most of the lots and built a large retaining wall around the sides and back of many of the properties. A retaining wall is not allowed to be more than 30 inches tall without a fence around it. None of the Handy Lane retaining walls have fencing on top of them, yet.

This raising of the grade with walls leads to another zoning infraction. As is common in zoning throughout the country, you are not allowed to change the natural flow of water or drainage from your parcel. The reason for this is obvious, since you could create a new flow direction that enters your neighbors’ parcels and potentially erodes their land and enters their home, causing damage. The Handy lots have altered the natural flow of water, and damage to neighboring lots is imminent.

Solution: Clearing and grading need to be resolved before the framing inspection. If needed, a temporary water line can be put in for revegetation.

Why are they still forging ahead at Handy Lane? I think the community deserves a response to the lifted grade and reworked water flow, as well as accurate pyramid documentation shot by the surveyor. On a few of the parcels, very tall pool houses are being built, and they are also in need of pyramid verification. This information should be made available at the Building Department. “It’s too late” is not an acceptable excuse. If there are found to be pyramid violations, the area of violation should be removed. If that means part of the house needs to be chopped off, so be it. We need to follow the law.

And there’s one more problem: Three-story houses have arrived! In zoning, the lower level (we used to call this a basement) does not count toward gross floor area or assessment. This space must have no more than four feet of exterior foundation wall showing. If more shows, it is deemed a first floor. This means it can have only one more floor above it, as we are limited to a two-story house. The code allows for an egress area or garage door to be cut into the lower level, but no more than that. This law is being ignored with some of these large spec houses.

Solution: Lower-level foundation exposure diagrams should be submitted once the house is framed and the dirt has been backfilled, as you then would know the exact height of the exposed foundation wall. After framing, and before issuance of the framing inspection, this needs to be approved and also verified on site by an inspector and signed off on.

Any clearing violations need a stop-work order and a significant fine. The fine should be added to a revegetation fund so that large tree saplings can be planted throughout our community. When you cut down a 50-year-old oak tree illegally, it is my view that you need to replace that tree, on your own parcel or elsewhere. Waiting until the house is finished is not an acceptable solution. What is the monetary value of a 50-year-old tree?

In summary, we have a total free-for-all unraveling, with developers completely ignoring the town code. It was never this way before. These are new breeds of businesses and homeowners on the South Fork that we need to reel in immediately. We are on the precipice of looking like an overdeveloped mishmash of science projects on steroids instead of a bucolic New England village.

I suggest that it’s time that the community learn the nuances of the zoning code and keep an eye out for potential construction violations and report them in writing to the town board and the Code Enforcement and Building Departments, and potentially share them here, in our home-grown, history-loving newspaper in a letter to the editor, so we can establish a public forum of awareness.

The proliferation of “spec whales” beached upon our lanes is the result of insufficient financial and staffing support for the Building Department, the Natural Resources Department, and zoning and planning.

The zoning code is a living document that is supposed to be adaptable as a community grows and changes. It’s high time to reassess our code so we can be protected from greedy, poor quality overdevelopment, which has clearly arrived, with bells on.

Erica Broberg Smith is a practicing architect in East Hampton.


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