Zoning Board: Third story denied, line drawn on biz expansions

Board members review the Wilsons’ incomplete application on February 16.
TED HILLS PHOTO | Board members review the Wilsons’ incomplete application on February 16.

Jeanne McCulloch and Bill Wadsworth will not receive a certificate of occupancy for their house on North Menantic Road until they rip out additions to their third floor, following the Zoning Board’s refusal to legalize those additions at its February 23 meeting. The board also determined that the owner of the Olde Country Inn, and any other business in a residential zone like it, will not be able to build a driveway to their business across a merged residential lot.

The board also voted to reopen and rehear Jill and Ken Wilsons’ variance application to build a pool, because one of the required variances was not addressed by the applicants at the hearing.

All votes were unanimous; Doug Matz was absent from the meeting.


The board voted to deny Ms. McCulloch’s and Mr. Wadsworth’s variance to legalize additions to their third floor done without a building permit.

In 2004, the applicants installed heating and air conditioning units, insulation and wainscot panelling that hides those units and the bare rafters in their attic. These changes turn the third floor into finished living space, according to the Building Department, and Shelter Island zoning code forbids more than two stories of finished living space. The applicants said the builder gave them the impression the additions were legal, and they offered to install a sprinkler system to make the third floor conform to New York State law.

The house was built in 1860, according to the Building Department, and the third story has been used as recreation space for many years prior to the current owners’ purchase of the house, according to Valerie Marvin, the owners’ legal representative before the board. The third floor was carpeted prior to the current owners’ purchase of the house.

Board member Doug Matz explained at the February 16 Zoning Board meeting, “In my mind, what really drives this decision for me is ‘was [the third floor] considered habitable space when the property was purchased, or was it made habitable by the renovation?’” Building Inspector Billy Banks said that the existing carpeting does not make the floor habitable space.

Board members commented on the issue but also reacted to Board Chairwoman Joanne Piccozzi’s remarks during the meeting. Board member Peter Ruig commented, “It is a fact, is it not, that the third floor was used as living space?” to which Ms. Piccozzi retorted, “It was not improved, it was not improved at all!”

“The whole house was unimproved,” responded board member Patricia Shillingburg, unheated and not air conditioned and without sheet rock. “So guess what,” Ms. Piccozzi responded, “if you improve it, you have to do it with permits, and there were no permits granted! And because you do something wrong, it does not mean we get to grant you the right.”

“I merely was just trying to get the facts straight, I wasn’t taking a position,” Mr. Ruig said. “And you get shouted at for that,” said Ms. Shillinburg. Ms. Shillingburg asserted that it was, at one time, used as living space and that when she was a child, she and past residents would sleep on the carpet of the third floor. The applicants said during their January 26 meeting that there was evidence that a bunk bed was once there.

Ms. Piccozzi and Mr. Matz didn’t think that use constituted habitable space.

The applicants were not “arguing” for a grandfathered use, board attorney Laury Dowd noted. “That makes it even more unacceptable,” Ms. Piccozzi commented. “It’s breaking state fire code and town code, and if somebody wants to argue with me on that point … Somebody better explain to me how you grant this, because I don’t see it.” Board members agreed that the work should have been done through the proper permitting process, and then they would have avoided their current situation.

Ms. Piccozzi requested that the builder, Paul Clapp, be reported to the Home Contractor’s Licensing Review Board.


The Zoning Board voted in favor of an interpretation of Section 133-23 C of town code, “Nonconforming buildings and uses,” that restricts expansion of a nonconforming commercial use onto a merged residential lot.

The interpretation deals with businesses in residential zones that have been operating since before the current zoning regulations were enacted. According to the interpretation, when a lot with a grandfathered business in a residential zone merges with a second residential lot, the second lot “may not be developed to benefit the nonconforming business use.” In other words, on that second lot, the business owner cannot build a driveway for customers to access the business, a parking area for customers or install a pool to be used by their customers.

The second lot can be used, however, for residential activities not related to the business.

During the February 16 meeting, Mr. Matz argued that anything on the merged lot that profits the business should be prohibited.

“I think that’s absolutely right,” responded Ms. Shillingburg, “you turn a residential property into a commercial property, and that shouldn’t be allowed.”

“Anytime someone gets a dollar for something in a residential property, its commercial,” said Ms. Piccozzi. The board agreed that even a parking lot or driveway access on a merged lot would help the business earn money, and therefore be an unacceptable extension of the commercial use.

The issue arose in September, when Olde Country Inn owner Jean Fenkl merged the Olde Country Inn property with an adjacent vacant lot she owned, a lot that extends behind the inn to West Neck Road. A section of that vacant lot was cleared, apparently to cut a driveway.

Neighbors voiced their concerns about traffic from the commercial driveway during a December 3 Town Board work session and questioned whether a commercial driveway on the vacant lot was an expansion of the Olde Country Inn’s nonconforming business use.

The Town Board is currently revising section 133-23 of zoning code to clarify what constitutes an expansion of a nonconforming business use. The proposed amendments would define an expansion of a nonconforming use as “any alteration in building or lot size, configuration, amenities, capacity or similar changes, which requires a building permit.” The amendments further stipulate that “any expansion of a nonconforming use outside the existing building footprint requires special permit approval.” The draft stipulates that the special permit would be granted by the Town Board, not the Zoning Board, though the Zoning Board’s interpretation says that an expansion of the nonconforming use to a merged residential lot requires Zoning Board approval.