At the June 15 work session of the Southampton Village Zoning Board of Appeals, the chairman suggested that an applicant for a change of use from office to residential should foot the bill for a study of the village’s office district. When the board reconvened June 24 for a public meeting, the attorney for the applicant told the board members that ordering such a study is outside of their authority — an assessment that one board member agreed with.
At 99 Sanford Place, the applicant, a limited liability company, is planning to subdivide the property into two and convert it from office use to residential use. The subdivision is not before the ZBA, but the change of use application is.
ZBA member Kevin Guidera said at the work session that a change from office to residential — “a higher degree of use” — is an improvement. “We’ve done this many times before,” he added.
Member Susan Stevenson said she used to think that it is better to have residential than commercial, but “we shouldn’t just out of hand think that’s always okay.”
Chairman Mark Greenwald pointed out that the village’s comprehensive plan called for an analysis of the office district, but that analysis never happened.
He rejected the applicant’s assertion that the board is compelled to grant the request because it granted the same change for a White Street property. “If we follow the logic of the applicant, we are step by step eliminating the office district, and I don’t know that that’s a good thing,” he said. “I don’t know if it’s a bad thing, but I’m not going to be part of doing something when we don’t know exactly what the effect of our decision might be.” He suggested the neighbor will come in and make the same request, “and one after another we have eliminated the office district.”
Mr. Greenwald said he would like to have advice from a professional planner before making a decision. He recommended that the board asks for a study of the office district by Nelson + Pope, the firm of ZBA planning consultant Chic Voorhis. It’s important, he said, “to go back and understand and respect our history, and why an office district was created in the first place and why it was delineated here.”
Mr. Greenwald also cited a code provision that states, “The applicant should bear the cost to the approving authority of professional review, when such expertise is required by the approving authority.” He said the expertise of Nelson + Pope is required by the ZBA, and the cost of the review “will be borne entirely by the applicant if they want to proceed with this application.”
At the ZBA’s public meeting nine days later, the board heard from the applicant’s attorney, Elizabeth Vail, who is a land use and municipal attorney with the firm Farrell Fritz, as well as the attorney for the Sag Harbor Village ZBA.
Ms. Vail started off by saying she had watched the work session and observed that the chairman mistakenly referred to the application as a request for “use variance.”
“This application is for a special exception use permit,” she said. She quoted the state law on such permits and said that the existence of a special use permit in the village’s zoning law is tantamount to a legislative finding that the use is in harmony with the community’s general zoning plan and will not adversely affect the neighborhood. She added that there is “a strong presumption in favor of that use.”
Ms. Vail also said Mr. Greenwald tried to discount her reliance on the village’s comprehensive plan by saying that the plan, from the year 2000, was an old plan.
“It was a plan that was adopted by the Village Board of Trustees as the comprehensive plan for your village and your board to follow,” Ms. Vail said. “You are the Zoning Board of Appeals. You are not the legislative board of the Village of Southampton. Therefore, you have no authority to call for and/or adopt planning studies that the land-use boards like yourselves can rely on thereafter in their determinations. You are authorized under New York State village law to apply the code to the application before the board. That is all.”
She went on to say that the Village Board has decided that residential use was permitted in the office district, and this application conforms with the comprehensive plan and subsequent planning studies. “You cannot undo this simply because you disagree or you think it’s old,” she added.
Contemplating that every other owner in the office district will ask for a residential use “is speculative at best and prohibited by law,” she said.
“We’re overstepping our bounds when we ask for a study of the office district,” Mr. Guidera said.
Mr. Greenwald asked the board’s attorney, Jeff Blinkoff, whether he agrees that the board is overstepping.
Mr. Blinkoff said answering that question would be “legal guidance to the board” and asked to speak privately. Mr. Greenwald agreed, and the discussion did not happen publicly.
Mr. Greenwald pointed out to Ms. Vail that the comprehensive plan recommends the office district analysis. She countered that the plan favors residential uses in the district and said the law does not allow the board to study the matter further to come up with a different result.
Mr. Greenwald said the board is not looking for a different result but a more educated result. “It seems like you’re objecting to analysis that would inform us, and that bothers me,” he said.
“I object to it. Not that it would inform you,” she said, “but that you’re asking for it as it applies to the whole office district. This is an application for 99 Sanford Place, and only 99 Sanford Place. This is not an application to consider residential uses throughout the office district, which is what this board seems to want to do at my client’s expense.”
Mr. Guidera said this is a simple application: “I don’t know what this hang up is here,” he said, suggesting the application be approved immediately.
Ms. Greenwald reiterated that he is concerned about the precedent.
“You’re allowed, of course, to consider whether it is precedent setting, but you should make your decision unique enough so that you can distinguish it going forward from other applications,” Ms. Vail said.
Mr. Greenwald said he doesn’t know if the board can actually do that, and he said the board needs to consider whether it is changing the character of the community.
Ms. Vail said the property is an area that is already more residential than office and abuts residential zoning, so it is in keeping with the character. She suggested the board members speak with their counsel before proceeding with any study.
The board voted, 3-1, to keep the matter open for all purposes. Mr. Guidera was the sole no vote, wanting to close the matter for a decision. “There is nothing more to be gained here,” he said.
