Town backs off rules change, Business community sees threat to a way of life

PETER BOODY PHOTO | Dory owner Jack Kiffer at Friday’s Town Board hearing.

Facing intense opposition from the business community, the Town Board on Friday officially backed off a proposed amendment to the zoning code that was drafted to clarify the rules governing businesses in residential areas that legally predate current zoning.
Even before anyone spoke at a hearing on the proposal Friday afternoon, Supervisor Jim Dougherty told the crowd in the packed Town Hall board room that the amendment would be tabled. He acknowledged that it was “very tough to do business” on Shelter Island and that the board was “very sympathetic” to the concerns of the business community.
Seventeen people spoke at the hearing, almost all of them against the proposal.
The proposal needs to be “taken off the table,” declared former Supervisor Alfred Kilb Jr., who scolded “the members of this board” because “they don’t understand” the economic importance of the many non-conforming businesses scattered around the Island like “little outcroppings.”
The eclectic mix of residential and non-conforming businesses that characterizes Shelter Island “makes the Island work,” he said.
“The business community is treated like some kind of scourge on the community,” Mr. Kilb charged, after arguing that the rights of non-conforming businesses have been steadily eroded in recent years. “The residential people are getting prime consideration and the business people are being treated like the stepchild,” he added, prompting a burst of loud applause.
The proposed code change “will have a devastating effect on the whole Island. I’m asking you tonight to just rip this up,” said Dan Calabro, a major landlord here.
The proposed code change eliminates the word “voluntarily” in defining the legal “discontinuance” of a non-conforming business after a year of disuse, noted Town Board candidate Will Anderson. “That’s a big deal,” he said, arguing that a business might be tied up in probate for more than a year. “Little changes” in language, he said, “add up to big stuff.”
“What’s wrong with the existing laws?” he said, asking the board members if they wanted to vote “for or against selling out Shelter Island’s character and Shelter Island’s history.”
At least 50 percent of the Chamber of Commerce’s membership and 80 percent of the businesses on the Island “are probably pre-existing, non-conforming,” Chamber President Sean McLean said. They are “a susbtantial part of the Island and character of the Island.” The Chamber had no objection to the rules currently on the books, he said, but Island businesses “will be damaged by the currently proposed legislation.”
“We ask the Town Board to vote down or table” the proposal “and involve the Chamber of Commerce” in redrafting it. “Make sure” the business community is represented, he told the board. “We’re really worried about the future if this is adopted.”
Among the handful who spoke in favor of the proposal were Lisa Shaw and Tom Hashagen, who said that homeowners had a right to believe the residential zoning of their neighborhoods would be protected from encroachment.
They are the couple alarmed last year when the Olde Country Inn bought a residentially zoned lot between the inn and their property on West Neck Road. Later a driveway was installed on it. The neighbors questioned the legality of the residential lot being used for a pre-existing, non-conforming business.
The issue landed last winter before the Zoning Board of Appeals, which ruled that the inn had illegally expanded its commercial use onto a residential property.
John Sieni, the new owner of the inn property, now called La Maison Blanche, sued the Zoning Board in State Supreme Court, seeking to overrule the decision and allow the Inn the use of the next-door lot. That case is pending (See separate story on facing page).
Ms. Shaw acknowledged she and her husband had brought the Olde Country Inn case to the town. She said she’d read the proposed new code carefully, and “I’ve not been able to determine how this is a change from the current town code.”
She said the code was a clarification to make sure those who had to interpret it could do so with certainty. She warned that “if you have your home in an A zone where there’s not supposed to be anything but A-zone residential use and then, say a business, a non-conforming abuts your property and then buys in your zone  … it causes zoning creep, it’s spot zoning” that “devalues your property.”
“What protects the homeowner?” she asked.
Before taking public comment on Friday, Supervisor Dougherty explained that the Olde Country Inn case was what prompted the Zoning Board to ask the Town Board to clarify the rules governing non-conforming uses, including their expansion and their discontinuance. The board has been going over the proposed code changes, drafted by Town Attorney Laury Dowd after researching zoning codes in other towns, in work sessions for months.
Last month, Councilman Ed Brown warned that a blacklash was gathering strength in the community. Dory owner Jack Kiffer warned in a letter to the editor on June 23 that the Town Board was working on rules that would be “a game changer for commercial business owners on the downside,” and called for businesspeople to a meeting at his restaurant on June 30.
Subsequently, Mr. Dougherty announced at a work session that the board had dropped the section of the proposed code that would have barred reconstruction of a pre-existing, non-conforming commercial use if more than 50 percent of its structure were destroyed by fire — the only all-new concept in the proposed code. The current regulations do not specifically address fire. They do contain a section on “restoration,” which says that ZBA approval is needed to rebuild if more than 50 percent of a non-conforming use is damaged. 
Others who spoke in favor of the code change were Lori Raymond, who said there was “confusion going around” about the proposal and that she was “in full support” of the code change for giving homeowners a clear basis for objecting to the expansion of non-conforming businesses in their neighborhoods”; and Tim Hogue, president of the Shelter Island Association and mayor of Dering Harbor, who said he had “not heard anything specific” from business people who had spoken against the code change to explain why they so opposed it. “I’m very sympathetic to Lisa. If you move next to an existing business, but there is a lot there and all of a sudden a business expands closer to you, it’s a very disconcerting thing.”
The only other speaker in support of the proposal was Tom Hashagen, who said he and his wife were not “anti-business.” Their interest was in protecting the homeowner while respecting the interests of business, he said.
“I agree that the law as it stands, when enforced properly, resolves problems” that might come up, “but I don’t want to be in a group chastized as anti-business …” But when a non-conforming business has the potential to expand into a residential zone, it could be “decimating to the character of the neighborhood.” He called for the town to “strike a balance” in the law between residential and commercial interests and “let’s do it as neighbors.”
Otherwise all speakers opposed the proposed code, including:
• Dick Petry of the Pridwin Hotel, who said “we want to be able to expand and continue to operate as we did.”
• James Eklund, an owner of the Chequit and the Ram’s Head Inn, who said that for businesses in residential areas “it pays to be a good neighbor … We don’t need further legislation to deal with problems.” He said since he bought his businesses “my rights have been infringed” by tighter restrictions on expansion, which have had “quite an impact” on his ability to sell.” He said more rules “just make it that much more difficult to exist and survive.”
• Richard Kelly, who asked why the Town Board had not formed a committee that included business interests for guidance as it redrafted the code. He also said, “I don’t notice any negative impact if you leave things the way they are.”
• Jack Kiffer, who said if he bought a house next to an airport, he wouldn’t be complaining about the planes. He said that the code change could mean he’d lose the Dory if he got sick and couldn’t run it or find a tenant for it for more than a year. “Why change it?” he asked of the current code. “It has worked fine now for years. Just because the ZBA couldn’t figure out how to do it with the Olde Country Inn” doesn’t mean the town has to make code changes “that affect everyone else.”
• John Sieni, who said he had walked the inn property with Lisa Shaw and Tom Hashhagen to talk about landscaping plans so no one had to see anything they didn’t want to see. “That’s why I filed the Article 78” lawsuit to overrule the ZBA ruling barring the Inn’s use of the residential lot.
• Alfred Kilb Jr., who spoke a second time, saying the proposed code “didn’t clarify. It changed the law. The subtleties are devastating,” such as leaving out the word “voluntarily” in the section on discontinuances.
• George Hoffman and Dianne Bowditch both urged the Town Board to let the State Supreme Court’s pending ruling in the Sieni case determine town policy. “Abandon this for now and see when it settles down,” Ms. Bowditch said.
• Emory Breiner, who noted that a Town Board Zoning and Planning Task Force on which he had sat had made recommendations in 2003 that discontinuances require two years of disuse; it also called on the town to use December 31, 2003 as the dates establishing the legitimacy of pre-existing, non-conforming uses instead of 1959, when the first zoning code was adopted, because there are so few records to prove what uses were in operation then. Councilman Ed Brown told the crowd he thought it was “fantastic that the Chamber of Commerce guys are here. It might be the beginning of a real good thing for the Chamber. I really like the input; it’s really good.” He told the group there would be “nothing happening” that night as far as adoption of the proposed code change was concerned. It would be tabled for further study, he said.
Councilman Glenn Waddington said that a mix of residential and commercial uses was “the nature of Shelter Island. “That’s integral to what we are” but, he added, “There’s pushback.” He said no one wanted to see all businesses being forced to operate in only one business district.
At the Tuesday’s work session this week, the board and members of the audience — including several people who had spoken at Friday’s hearing — talked further about the proposed amendment. Supervisor Dougherty said the board had “a simple path” to follow: go back to “the staff and the ZBA,” who had initially asked the board to draft clarifying language in the code, “to see if they have any suggestions for moving forward.” In the meantime, he said, no law would be passed. He agreed to form a committee representing business interests as well as residents to help with the process.
Councilwoman Chris Lewis suggested during the discussion that the proposed amendment could be salvaged by putting the word “voluntarily” back into the section on discontinuances of pre-existing, non-conforming business, and that a two-year period of disuse instead of one-year period should be allowed before a non-conforming use is considered to have been abandoned.
Ms. Lewis said there are fewer non-conforming business uses on the Island than many people have suggested. They are listed at the Assessors Office “and you’d be surprised how few there are,” she said.