Bridgehampton Property Owner Questions The Definition Of ‘Waterfront’

The phrase “waterfront property in the Hamptons” often conjures up specific images of lavish homes with access to top-notch beaches and a host of marine activities, such as boating, kayaking and fishing. But what if that definition could be challenged?

A proposal before the Southampton Town Zoning Board of Appeals (ZBA) to install a swimming pool in the front yard of a home on Hildreth Avenue in Bridgehampton has boiled down to a question of what exactly constitutes waterfront property. The backyard is made up of wetlands, leaving no room for a pool, John Bennett of the Southampton firm Bennett and Reid, who is representing the property owner, Janet Finkel, has stated.

Ms. Finkel is asking to construct an 18-foot-by-32-foot in-ground pool in her front yard, to the dismay of some neighbors who live near the house. Jeffrey Bragman, an East Hampton-based attorney who is representing neighbors David Didomenico and Arthur Romaine in opposition to the request, contests that the pool would jut out of the ground by approximately four feet.

Approximately 15 others have spoken out against the project over the years, according to Mr. Bragman.

Ms. Finkel sought variances from the ZBA more than two years ago to construct the pool—town code prohibits front yard pools, unless a variance is awarded—but was ultimately denied the request for relief from the code in a ZBA decision dated July 16, 2009.

Last year, Mr. Bennett tried a different tack by asserting that the property was waterfront—claiming that the wetlands contain ponds. Waterfront properties are allowed front yard pools after a certain amount of scrutiny. While most people assume that waterfront implies land on a bay or the ocean, Southampton Town Chief Building Inspector Michael Benincasa noted earlier this month that there is no definition of “waterfront” in the town code.

In May 2010, Mr. Bennett sought a determination from Mr. Benincasa that his client’s property was waterfront land, claiming that wetlands on the rear of the property prohibit the construction of a pool. Mr. Benincasa ultimately approved the request in a follow-up letter, basing his determination on a similar parcel in town that was approved as waterfront by a prior building inspector.

Mr. Benincasa has the authority to issue a building permit for the pool without ZBA review. If a lot is deemed waterfront, the front and back yards shift under town code, Mr. Benincasa said—allowing a property owner to construct a pool on what is typically considered the front yard.

According to ZBA Vice Chairman Adam Grossman, Mr. Benincasa’s determination was challenged by neighbors in an application to the ZBA. The ZBA can uphold or discharge Mr. Benincasa’s determination.

The chief building inspector said he visited the site before issuing his determination and saw no other space for Ms. Finkel to place the pool except the front yard.

“Where else would she put that pool?” Mr. Benincasa asked during a recent interview at his Town Hall office, pointing to a black and white survey provided by the applicant that delineates dark spots as ponds in the rear of the property.

Neighbors are appealing Mr. Benincasa’s decision that the lot is waterfront. Their attorney, Mr. Bragman, maintains that the rear yard is just wetlands, and shouldn’t be considered anything but. At a ZBA meeting on Thursday, November 3, Mr. Bennett and Mr. Bragman argued heatedly. The conversation at points devolved into a shouting match between the attorneys and the ZBA members.

“This is not waterfront property,” Mr. Bragman said. “No man on the street would say it. No broker would think it.”

Mr. Bragman said that to call the lot waterfront was a “strained, illogical, unnatural use of the word.” He brought in an expert—Eric Lamont, a botanist from Riverhead, who explained that the property in question actually fronts a swamp, not a pond.

Mr. Bragman further cautioned board members that they would embark on a “dangerous precedent” by calling the lot waterfront. In a follow-up interview after the public hearing, Mr. Bragman elaborated on his point. He also said that there’s “no similarity” between the lot Mr. Benincasa modeled his determination after and Ms. Finkel’s property. He also noted that the Bridgehampton Citizens Advisory Committee also opposed the application.

“I think the ZBA really needs to think clearly about the policy that their decision is going to generate,” he said. “It’s a distortion of the zoning code and it opens up the possibility of huge mischief and frankly abuse of the code.”

During an interview earlier this month, Mr. Bennett explained that the law doesn’t clearly define what a waterfront lot is, and that in the event of ambiguity, the law should be construed in favor of the property owner. He also noted that the Southampton Town Conservation Board approved the pool, and that one of the neighbors on the street has a pool in their front yard. He added that if approved, the pool would be screened and buffered from view.

“The town code does not define waterfront so you tell me what it means,” Mr. Bennett said. “It doesn’t say it has to be on the ocean. It doesn’t say it has to be on a named pond. It doesn’t say it has to be on a river. It doesn’t say it has to be on a lake. It doesn’t say it has to be on a bay.”

Mr. Bennett also added that he felt the neighbors opposed to the application insulted the building inspector. He also said he felt that the neighbors “just don’t like it because they don’t have it.”

“It’s the same old story,” Mr. Bennett said. “It’s just like more East End hypocrisy, which just abounds. Not only is the typical East End ‘I got mine’ hypocrisy at play, but they’re insulting the building inspector.”

The ZBA members voted to close the hearing and placed the application on their decision calender for December 15.