Land-Use Professionals Discuss South Fork’s Greatest Land-Use Challenges

More restrictive zoning codes, a desire to build out to the maximum, and more land-use board decisions ending up in litigation were among the top land-use issues in the Hamptons identified by a panel of experts assembled at LTV Studios in Wainscott last week.

Four local land-use professionals joined the Hamptons Homeowners Forum, hosted by Douglas Elliman associate broker Patrick Mclaughlin, to discuss “Navigating Land Use and Construction.” Afterward, they stayed for a discussion with a reporter of the greatest challenges and biggest changes when it comes to land use on the South Fork.

“Everybody wants to build as big as they possibly can,” said En-Consultants land management specialist Susanna F. Herrmann.

“It’s such a big investment,” she explained. “It’s so much money, so everyone wants to maximize their investment in their property. However, maybe it’s not the best thing for their property, maybe not even what they want. But they’re trying to build as big as they can.”

Saskas Surveying Company President David Saskas said wanting to build out to the maximum allowed is human nature and a knee-jerk reaction to size restrictions.

“When you put restrictions on a property, I’m finding people want to go to that restriction because they’re like, ‘I’m not going to be able to ever do this again.’ And it’s unfortunately the reverse of what the town wants,” he said.

When property owners expect that zoning regulations will become more stringent over time, they tend to build the most they can under the existing rules.

“They don’t want to lose the rights that they have on a piece of property,” Saskas said. “So they’re just going to max out to what the rules are.”

Roy Dalene, the co-founder of luxury builder Telemark Inc., as well as the chairman of the East Hampton Town Zoning Board of Appeals, pointed out that when the Federal Emergency Management Agency was preparing to increase elevation requirements for houses, property owners rushed to get foundations into the ground at the old elevations, so their properties would be grandfathered in under the old rules.

However, that strategy did not end well for some when Superstorm Sandy struck the East End in 2012.

“I used to have a lot of conversations pre-Sandy about, how do I avoid having to conform to FEMA regulations? How do I not have to lift my house?” Herrmann recalled.

She noted that towns favor raising houses because the more a community conforms to the FEMA requirements, the better grade the community gets, influencing everyone’s insurance rates.

“After Sandy, I don’t have that conversation anymore because the people who conformed survived fine, didn’t flood,” she said.

As a surveyor, Saskas routinely maps FEMA’s flood elevations. FEMA’s work has proven to be precise.

“When Sandy came on my own property — it was in North Haven on the water — I went out just to look at where the flood water came up compared to the line I drew on my map,” he said. “It was exact.”

Herrmann said she hears the same from homeowners, over and over.

While FEMA requirements call for homes to be built at higher elevations, property owners still have local height restrictions to contend with.

“Southampton is smarter than East Hampton because … they adopted a formula for that to allow height restriction relief,” Dalene said. “So East Hampton hasn’t done it yet, … it’s left up to us as a zoning board to apply the balancing test on that.”

Under state law, the balancing test requires zoning boards to weigh the benefit to the applicant against detriments to the health, safety and welfare of the community before granting or denying an applicant’s request for relief, known as a variance.

The test has five factors that must be applied: the effect on neighborhood character, whether there is an alternative solution that wouldn’t require a variance, how substantial the request is, what the effect granting the variance may have on the environment and whether the difficulty necessitating the area variance is self-created.

Dalene reported seeing a trend lately where someone buys a property knowing the restrictions that exist but asking for a way around them.

“They are trying to press the envelope, and that’s where I think East Hampton is faced with that dilemma of what to do with zoning,” he said.

With a trend toward waterfront houses that are closer to the street and taller, Dalene warned East Hampton could end up with a “corridor effect.”

Herrmann noted that height restrictions are influencing architecture choices.

“That’s why you have so many flat-roof houses going in, in flood zones,” she said. ‘It’s changing the architectural style of the whole waterfront of the Hamptons.”

“To maximize floor area, you build a box, ” said land use attorney Carl Benincasa, who is also a former counsel to the Southampton Town Planning Board. He added that some municipalities allow greater heights for pitched roofs, but that’s not the case everywhere.

Benincasa has seen the frequency of land-use litigation increase. He said regulation is getting tighter while property owners are getting more aggressive. And the fact that some property owners have won their lawsuits against land-use boards encourages others to litigate.

“There are boards now that are more activist than they used to be,” he added. “… I’m not saying whether that’s the case or not, but there’s a feeling that certain boards have agendas.”

Dalene said his board, the East Hampton Town ZBA, uses a reasonable standard in its decision making.

“We can’t be subjective in our decisions,” he said. “We have the code, we have a balancing test, and we should act on those in a reasonable manner. And I think that you’ll see more lawsuits because you’re getting decisions that are out there that do not fit that standard.”

Benincasa also reported seeing boards give less deference to their past decisions as their memberships have changed, and seeing courts siding more often with applicants who sued a land-use board to reverse a decision.

Generally, the boards he appears before have a deference to previous decisions, whether the decisions be 5 or 20 years old, he said. “I’ve seen situations where they don’t, and I think that sort of lends to contentiousness,” he added. “… The expectations of the client are set by the attorney, who’s giving them expectations based on our past experience. And when we can’t rely on that past experience, we’re upset, the client’s upset.”

From a due process and fairness perspective, there should be consistency with decisions, he said.

Dalene said another factor leading to applicants being more successful in court is the turnover of state judges. He attributed, in part, the higher frequency of lawsuits to pressure for larger development.

Benincasa said he sees many applications that he never would have taken on as an attorney that make him think, “I can’t believe you’re even asking for that.”

“I can’t believe some of these applications” Dalene concurred.

“A lot of denials are justified because these applications are out of nowhere,” Benincasa said.