Robert DeNiro asks East Hampton for variance to rebuild beach house

On behalf of Steven Waldinger at Shapiro Gettinger & Waldinger, LLP

New Yorkers love their getaways. From celebrity compounds in the Hamptons to cottages in the Adirondacks to second homes for weekends away from the city in the Catskills or Hudson Valley, and in many other hidden places in the countryside, in small towns and on the water, New Yorkers love their homes, cabins and farmhouses across the state.

Zoning complications

With real estate, however, can come unexpected land use and zoning issues. The dreamed-of structure may be too close to the water, a wetland or a sensitive type of land to build or expand because of environmental or local zoning restrictions, unless the owner can get permission to build from the local authorities, usually in the form of a variance.

Celebrity variance application

Actor Robert DeNiro provides an example of this kind of legal problem in the current news. The Southhampton Press reported in October 2017 that DeNiro had applied for permission from the East Hampton Town Zoning Board of Appeals or ZBA to tear down and rebuild his Montauk seaside home on the same footprint with modestly more square footage. Reportedly, the request was made because of foundation cracking and instability.

The application is called a "natural resources special permit." Apparently, the proposal would "require extensive variances from environmental setbacks, because the home sits just yards off the beach ..."

The parcel is described as steeply sloping toward the beach, terraced into three levels with retaining walls. A swimming pool is built into the bottom tier and the home sits atop all three.

According to the article, the village questioned a plan to leave the pool in its current location in a "designated coastal erosion hazard area." DeNiro's lawyer responded that it could not be moved out of the hazard area and remain within the parcel.

The lot in question is complex from a zoning standpoint. The Press cited the town planner for the opinion that normally, the board would order that the house be moved away from the water, but that because in this case the hill and bluff would have to be excavated to do so, it "would not be advisable."

It remains to be seen what the East Hampton ZBA decides in this case, but the application raises issues that often affect New Yorkers when they want to remodel, expand or build on their land parcels of various types, features and sizes, and the proposed projects would not conform to applicable zoning, environmental and land use laws.

Variances

New York law defines two different types of variances. The "use variance" is a grant of official permission to use a parcel of land for a purpose not allowed by applicable zoning or other laws. An "area variance" allows the use of a lot in a way that would otherwise violate applicable physical restrictions like those regulating setbacks, lot sizes, building density, structure height and so on.

Seek legal assistance

Bringing an experienced land use attorney on board as early as possible when a person seeks a land use permit is smart, especially when the proposal will require a significant variance.

The lawyers at Shapiro Gettinger Waldinger & Monteleone LLP in Mount Kisco represent residential and commercial property owners as well as developers throughout Westchester County and the Lower Hudson Valley in land use and zoning matters, including the preparation of permit and variance applications and advocacy for them before local boards and on review by other agencies and courts. They also represent parties who oppose the permit applications of other landowners.