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Code Red

While doing research in the East Hampton Star archives, I came across a letter to the editor titled “Devastating Impacts,” dated Jan. 18, 2021, from Samuel Kramer. Writing as a private citizen, rather than in his capacity as town planning board chairman, he invoked the unique and robust efficacy of our zoning code: “The East Hampton Town Zoning Code is venerated and its validity has been upheld in countless lawsuits. It has prevented the kind of overdevelopment, disregard of the environment, and blight found elsewhere.”

I hold Mr. Kramer in highest regard for his decades of commitment in service to Wainscott, East Hampton, and his leadership administering that code. It’s a vast understatement to say his expertise on matters of zoning and development dwarfs my lay-citizen musings. So, who am I to dispute this confidence?

But today, just a year since that letter, I’ll admit my confidence in the protective power of our current zoning code has been shaken. Given explosive acceleration of East Hampton development over the last five years, and gauging the trajectory we’re on going forward, I ask if it is realistic to maintain full faith that our code remains the sturdiest of bulkheads to shield us from the flood.

There are East Hampton neighborhoods and streets that, at least in part, retain modulated proportions and an authentic look and feel, a.k.a. character. We have many stunningly beautiful, biodiverse natural areas, bucolic landscapes, and rural/agricultural lands that have been preserved (thanks to the commitment and work of many) and surpass most anything you’ll find across the South Fork. (And if you’re keeping tabs on North Fork development, you see how quickly parts of it are being ravaged precisely because those towns don’t have the same time-tested, rigorous code protections as we have.)

But within a stone’s throw or turn of the head from these charming streets and protected vistas, are tracts of overdevelopment gulping down energy and water and generating excessive carbon, nitrogen, noise, light and visual pollution, contradictory to our environmental and natural resource imperatives, and anathema to those concerned about our quality of life. All around is explicit confirmation of property-owner and real estate-developer disregard for and degradation of the environment, and the encroachment of density and intensity of use one can legitimately label blight.

It’s not just proposed commercial mega-projects like the hamlet-altering sand pit Wainscott Commercial Center and the egregiously-scaled resort proposed at 435 East Lake, but it is the day-in-day-out applications, permitting and construction of hundreds of 5-6-7-8-9-10...20 thousand-square-foot houses and their rapacious plunder of our resources that prompt questions about the ongoing protective power of Chapter 255 as we move into 2022.

I understand how our well-crafted, time-tested code provides powerful tools for mitigating suburbanization pressures. For the members of our boards —- zoning, architectural review, planning — it fosters their fortitude and is foundational to their ability to impose some prudent measures of restraint while working to balance individual owners’ rights and impulses to overgraze tragically on our commons with the broader interests of the community.

But as I understand it, the bulk of East Hampton building permit applications don’t actually come before these boards for review, mostly because of lack of jurisdiction, but also sometimes due to interpretive judgment calls or, in some cases, outright mistaken failure to refer. I estimate less than 20 percent — possibly even below 10 percent — of building permit applications receive the added layer of a board oversight, while the rest proceed directly to granting of so-called “as-of-right” building permits.

So, the strength of the code relies on more than well-crafted words, clarifying amendments, or even the validity accruing from years of legal stress testing. The code’s efficacy is in no small part dependent on a certain amount of voluntary buy-in and self-imposed self-regulating behavior among the many elements of our real estate ecosystem — the builder-architect-landscaper-broker-attorney-consultant constellation — to comport with East Hampton character.

Most of all, it requires that landowners and homeowners maintain some self-restraint and a modicum of a stewardship mind-set. In large part, our zoning code has worked for decades — until this one — because, quite simply, homeowners buttressed Chapter 255’s efficacy and validity as the majority continued to choose to build and rebuild at a scale meaningfully below the maximum dimensional limits set for gross floor area, coverages, clearing, setbacks, height (pyramid), etc. Somehow, even with all their wealth, wants, and whims, until these last few years, owners demonstrated the tacit understanding that building as of right comes with some responsibilities extending beyond their property lines. They seem to have understood that the value of their own property links inextricably to sustaining the town character and environment, and vice versa.

But over the last three to five years, owners and developers have slipped the bonds of rational self-limiting restraints. The shift in mind-set has been sharp and swift, and the voracious appetite of applicants to max out or even break through the dimensional ceilings has become the norm. That radically-altered mind-set is threatening to break our venerable and valid zoning code. We’re at Code Red.

Why has this happened? That discussion exceeds the scope of this letter. But in short, Americans’ historical affinity for larger houses and tendency to supersize things in general has been supercharged by two decades of unending monetary stimulus, tax-rate cuts, staggering wealth accumulation and concentration, the all-out shift in the economy to extractive, rather than value-creating capitalism, as well as an invasion of speculative developers.

Given these seismic shifts, our zoning code now seems underpowered relative to current dynamics as well as the fact that the town last year declared a state of climate emergency.

Our town board has begun to recognize the damage done as development gobbles up our precious woodlands and sends them to the chipper. The supervisor notes that East Hampton is within a few percentage points of total buildout; he’s also proclaimed affordable housing to be an all-hands-on-deck priority for 2022. Yet any request of the board to enhance the code to address overdevelopment (the root cause of those issues) is met only with admonitions that it’s been tried and failed before.

The good news: we’re not starting from scratch; we do have this venerable and valid code in place to build upon. But if we’re to stop the blight, it’s more than tweaks. We need serious analytical and creative thinking about how to reshape the code to keep up with or even get ahead of this devastating new normal. It can be done.


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