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Dec 16, 2011 10:17 AMPublication: The Southampton Press

Southampton ZBA Rejects Front Yard Pool Plan In Bridgehampton

Dec 21, 2011 10:05 AM

The Southampton Town Zoning Board of Appeals last Thursday, December 15, overturned a determination by Chief Building Inspector Michael Benincasa that would have allowed a Bridgehampton homeowner to construct a swimming pool in her Hildreth Avenue front yard.

Mr. Benincasa issued a determination last year that the swampy backyard filled with phragmites and small pools of water qualified as waterfront property, after property owner Janet Finkel’s attorney, John Bennett, of the Southampton firm Bennett and Reid, argued for approvals for an above-ground pool in the front yard of the home, which borders a marsh area known locally as Sagg Swamp. Town code prohibits front yard pools unless a lot is deemed waterfront, in which case the front and rear yards can be considered swapped for development purposes.

Neighbors objecting to the pool mobilized and challenged the determination to the ZBA, which is charged with hearing such challenges. Their attorney, Jeffrey Bragman of East Hampton, argued that Mr. Benincasa’s determination stretched the definition of waterfront and, if validated by the ZBA, would set a dangerous precedent.

The decision means that Ms. Finkel will have to go before the ZBA to request a variance to build the pool in the front yard of her home. She was already denied permission for a pool when a variance application was rejected by the ZBA two years ago.

Ms. Finkel has filed for a variance for a smaller front yard pool, an application that is scheduled to be heard in January, according to ZBA Vice Chairman Adam Grossman.

The board voted 6-1 to overturn Mr. Benincasa’s determination, with the lone nay vote coming from Chairman Herb Phillips.

Mr. Grossman said most of the board agreed with Mr. Bragman’s arguments. “We were not convinced of the arguments of Mr. Bennett,” he said on Friday. “We were persuaded by Jeff Bragman’s position. And we, frankly, did not believe … that this is a waterfront lot.”

The decision outlines in detail why the board voted to overturn Mr. Benincasa’s determination. The board made its determination based, in part, on the dictionary definition of waterfront, and on “common sense.” It points out that Mr. Bennett never identifies a specific body of water that Ms. Finkel’s property fronts.

“We are guided by the common meaning of the words as stated in Webster’s Dictionary,” the decision states. “With respect to the use of the word ‘waterfront,’ Webster defines it to mean ‘land, lands with buildings, or a section of town fronting or abutting on a body of water.’ Given this definition of waterfront, common sense dictates that a ‘body of water’ must be identified in order for a lot to be considered ‘waterfront.’”

Mr. Phillips said he voted against overturning the determination because he felt that wetlands and waterfront properties should deserve the same treatment within the town code. “They should be held to the same standard,” he said.

The town “dodged a bullet” by ruling to overturn Mr. Benincasa’s determination, said Mr. Bragman. “We’re pretty gratified,” he said. “Common sense prevailed. I think it’s best for the town, really.”

Meanwhile, Mr. Bennett said the ZBA made the wrong decision, and that instead it should have upheld the determination and referred the issue to the Town Board to define the definition of waterfront in the town code. He also said the effort is not over—Ms. Finkel still has a ZBA variance application for a front yard pool coming up sometime next month.

“The Finkel saga continues,” he said.

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Looking at the aerial photos of the neighborhood, the next door neighbor to the south appears to have a road side (front yard) pool. The subject property seems to back up to a swamp or wetland, which would not allow for a pool to be in the back because of DEC and Southampton Environmental setbacks. The 3 neighbors on Oak Street and the home 2 lots south all have backyard pools that, presumably, were built before the current environmental setback were put in place. It seems rather unfair to not allow ...more
By the mink (11), Westhampton Beach on Dec 16, 11 11:25 AM
Someone needs to tell Mr. Benincasa that on this and other "decisions" he has made that have come before the ZBA that this is Southampton Town, not Brookhaven Town, where it seems that anything goes.
By nellie (451), sag harbor on Dec 16, 11 11:45 AM
Glad the BZA used their common sense and struck down Benincasa's absurd determination. Bennet is not a skilled attorney - he is a "shock and awe" attorney who tries to scare boards and those with opposing views into giving up. Bragman on the other hand is thorough and detail oriented using (gasp) facts to prove his case. He also is selective in what he chooses and doesn't let $$ signs blind him.

As for Mink's comments - the property to the south with the pool surely can't have a C/O ...more
By Nature (2966), Hampton Bays on Dec 16, 11 11:51 AM
2 members liked this comment
I think there is an incredible inconsistency to Buildings Department rulings as well as ZBA. The Buildings department has repeatedly ruled different ways on the same code, especially when the code is vague, and the ZBA is often used against the homeowner for no fair or above board reason ...I live in an RWB zoned area and I have been given many different answers by members of land management to the same question and my neighbor other answers to the same questions. Guess which home owner was given ...more
By sirpoochala (78), Hampton Bays on Dec 16, 11 2:01 PM
1 member liked this comment
Just asking for clarification - looks like the pool request is really for the side yard which is often referred to in the code as the front yard. there are tons of pools in side yards in my neighborhood. What I've seen of the ZBA is that they often rule against something that is reasonable if even one neighbor complains - even when the complaint has no merit or in my case, was false. I paid a few thousand dollars to get a compromise - not what I should have been allowed in the first place. If I ...more
By sirpoochala (78), Hampton Bays on Dec 16, 11 2:12 PM
1 member liked this comment
First SHV Chief Bldg Inspector John Foster advocates for parking on our village front lawns and now Chief Town Inspector Michael Benacasa advocates for pools in our front lawns. Somebody give these boys a map...Queens is to the west!...this is Southampton!
By Dodger (161), Southampton Village on Dec 16, 11 2:31 PM
3 members liked this comment
John Bennet, doesn't care about the right or wrong in this case he just wants his $$$$$$$$$$$$.
By summertime (589), summerfield fl on Dec 16, 11 9:37 PM
2 members liked this comment
I have always wanted a swimming pool in my front yard and as luck would have it my cesspool that is located in my back yard overflowed last week creating a small pond of sewerage, how do I get in touch with that Bennett character to plead my case?
By Sug Tonmi (25), southampton on Dec 17, 11 9:42 AM
"Absurd", "incredible inconsistencies", only a few of the decriptions of a department gone south under a department head who rules his fiefdom without regard to clarity and equal enforcment and sound determinations. Favoritism has no place in code enforcement. TIme is ripe now for a change. In this era where perfomance, responsiblity, and accountablity must be the norm, to accept any less is not what public service is all about.
This department needs a new head, with a reorganization and ...more
By waterboy (11), southampton on Dec 17, 11 11:42 AM
1 member liked this comment
Homeowner should move to Hampton Bays. The ZBA would let her put the pool an inch from the street there. They'd probably even let it spill over into someone else's yard(no pun intended).
By baywoman (165), southampton on Dec 17, 11 1:46 PM
1 member liked this comment
How does a Brookhaven inspector get to ruin the property values of the one diamond left on the east end? By having the checks and balances of both the Town Board to whom are catered to by developers, and a ZBA that has the check valve left in the wide open position...that's how! We are geting efffed every day by them.
By kelbas (30), Southampton on Dec 17, 11 2:22 PM
1 member liked this comment
Well isn't baywoman the condescending snob! You must be the one neighbor that everyone can't stand.
By hjr (1), Hampton Bays on Dec 17, 11 3:06 PM
I was trying to be sardonic. Sorry hjr that you didn't understand. What I meant was that the ZBA says ok to practically everything in Hampton Bays no matter how outrageous the request. I am saying that, if this application for a pool were in Hampton Bays, the ZBA probably would have allowed it. They give outrageous variances there; never refer to what the Master Plan recommends for Hampton Bays.
By baywoman (165), southampton on Dec 17, 11 3:25 PM
am appreciating the comment about the hampton bays pools...an inch from the street is right. if this still interests you, check this out. we had a lovely home in shinnecock hills, close enough to see the hamlet of hampton bays sign down the street and also, to pull in the homeless story, not far from another cheap residential hotel, not the same one as the one in the other stoy, but similar.

a nice retired auto executive bought and renovated the house next door, pointed out that his property ...more
By Vikki K (490), Southampton on Dec 17, 11 3:23 PM
Lets use common sense here. There is obviously water in the back yard so they can not put the pool there. Let them put the pool in the side or front yard. The town should only make sure the pool is built safely and does not present a harm to neighbors. The town should not be acting as the "style" police. If they worry about appearances, we should first ban minimalist cubist style of modern architecture.
By Spinny OHO (94), Speonk on Dec 19, 11 3:21 PM
2 members liked this comment
This is not about being the 'style police'. If the ZBA agreed with the bldg. inspector it sets a new precedent so anyone with wetlands in their backyard will be allowed to flip the front and the rear. Not only will that result in a lot of ugliness in the Town - it only encourages overusage of a property.

Just because you live in the Hamptons does not mean you have a right to a pool - it's called an accessory structure for a reason. They should have considered the fact that there are ...more
By Nature (2966), Hampton Bays on Dec 20, 11 12:35 PM
1 member liked this comment
Just add them to the LONG line of people who bought property, and then fought to change the rules to suit their own wanton (extravagantly or excessively luxurious, as a person, manner of living, or style) desires.

Racing at the Bridge, anyone?
By Mr. Z (11847), North Sea on Dec 20, 11 1:20 PM
It is about Style" police. You stated that it is not but then went on to say it will "result in a lot of ugliness in the Town". And your missing another point. Everybody has a right to a pool as long as it does not effect the safety of others or damage others in some way. It is not like they want to fill in the wet lands and put the pool there. They want to put it in a reasonable location, which preserves the wetlands, and people are only concerned about the appearance.
By Spinny OHO (94), Speonk on Dec 20, 11 1:43 PM
The fact that it's ugly is an aside. First of all, zoning laws exist to prevent chaos. With no zoning laws do you know what you get? You can't even begin to imagine the ridiculous ideas people come up with to do on/with their property but are prevented from doing so due to zoning laws (thank god). Without zoning laws someone could literally build a house with a 40,000 square footprint on a 40,000 square foot lot. Should that be ok? Or is that another "style police" fault?

You do not ...more
By Nature (2966), Hampton Bays on Dec 20, 11 3:07 PM
1 member liked this comment
A pool in the side yard is chaos? Ohh the HORROR. Like I said earlier "Lets use common sense" I didnt say elimate all zoning. And unless you know the home owner, what makes you think think that this zoning law was created prior to the purchase of the home? Over the past 5 -7 years the town board went crazy with silly zoning. Ex. All signs must have two support poles with the sign in the middle, pastel colors only. How about the national news making "No clothes lines on the front lawn" Southampton ...more
By Spinny OHO (94), Speonk on Dec 20, 11 6:25 PM
A) I never said location of pools results in chaos - only the lack of zoning laws.
B) The pool is proposed in the (required) front yard. There are many examples of pools in side yards.
C) Give me an exmaple of the Town Board going "crazy" with "silly zoning" over the past 5 years. The "no clothes lines on the front lawn" (which actually I believe applied to the entire property - not just front lawns) was esentially a racist law and it was rightfully abolished.
D) How signs and constructed ...more
By Nature (2966), Hampton Bays on Dec 21, 11 9:01 AM
that's exactly what he did with my neighbors - told them they could have whatever the ZBA approved for me - even though they had no action before the dept or the board!!! they had never even filed something! they asked for the same for them in the future when they wanted to subdivide and put a house right up against my property, even though their property isn't 2 acres so they can't subdivide. RWB requires 1 acre minimums!!!
By sirpoochala (78), Hampton Bays on Dec 30, 11 4:41 PM
The homeowner should just swim in his backyard kettleholes.
By lucy2 (63), Southampton, NY on Dec 20, 11 6:09 PM
1 member liked this comment
If you want to live in Smithtown or Shirley Spinny OHO, be my guest, but it's important to maintain the character of this beautiful place.
By bigfresh (4666), north sea on Dec 23, 11 4:31 PM
By the way, Smithtown isn't full of half run down houses and empty stores because the town board doesn't stick its nose in every little detail of a homeowner or business owners life. And lets compare apples to apples. Do you really think that Shirley is worse than Riverside or Flanders? Dont try to compare a multi-million dollar summer home to a $200,00 working mans starter home.
By Spinny OHO (94), Speonk on Dec 24, 11 2:19 PM
1 member liked this comment
Show me a township in Suffolk that has allowed a pool in the front yard because there was a swamp in the backyard. It doesn't exist - all Town's stick their proverbial "noses" into "every little detail", and don't forget Villages are the worst offenders. How DARE Sagaponack village limit the size of a house to just 11,000 square feet.
By Nature (2966), Hampton Bays on Dec 27, 11 12:21 PM
I guess Southampton allows pools in front yards because using Bing maps I found several. And near the house in question, the neighbor has a tennis court in the front yard and around the block there are two pools in side yards.
Is there really a problem with 11,000 square foot houses making the area look like a slum? Does the Rennart house really lower surrounding home values?
And Sagaponack recently created a law that any structure that adds character to he village can not be removed without ...more
By Spinny OHO (94), Speonk on Dec 29, 11 12:26 AM
2 members liked this comment
You take a drive around Southampton lately? They allow ANYTHING and EVERYTHING, except when someone is paying attention. $$ talks when you have builders, contractors and architects involved in the process.
By Glazed (21), Southampton on Dec 29, 11 5:22 AM
1 member liked this comment
Spinny - stop with the circular logic and factless boasts. You were the one complaining that in Southampton you can't do anything - then you claim that Southampton DOES allow pools in front yards?

You're wrong - they don't. The only times it happens is when the front and rear yard flip - like on oceanfront/bayfront houses. The whole point of this article and BZA decision is that the BZA determined this property isn't waterfront because the body of water it fronts is a swamp. When ...more
By Nature (2966), Hampton Bays on Dec 29, 11 9:01 AM
Don't lie, I didn't say that "you can't do anything." I said "lets use common sense". And once again I am pointing out that zoning laws should be used to ensure that structures are built safely and do not present a harm to others. Read the mission statement for the zoning department. It's all about enforcing safety codes. I do not need to know all the zoning laws to know stupidity when I see it. As for the play house, just google sagaponack Zoning and you will see several people were denied permits ...more
By Spinny OHO (94), Speonk on Dec 29, 11 10:43 AM
This is my last attempt at knocking some sense into you.

This application is NOT about a pool in the SIDE yard - which is allowed with a variance and is very common. It's about a pool in a required FRONT YARD.

There is a definition for wetland in both the Town Code and New York State code, but of course most bodies of water are wetlands but not all wetlands are all bodies of water. The ZBA asked for the name of the waterbody this property fronts on and the attorney was unable ...more
By Nature (2966), Hampton Bays on Dec 29, 11 4:27 PM
So the ZBA based thier decision on the fact that the body of water was not named so therefore, the house can not be waterfront. Theres no requirement in any definition of the word "Waterfront" Town, State, or even the dictionary that the ZBA used that requires a body of water be named to be called "waterfront". So they based their decision on a requirement that does not exist. If basing decisions on non-existant requirements make common sense to you. this town needs help.
By Spinny OHO (94), Speonk on Dec 30, 11 3:18 PM
1 member liked this comment
People, zoning law has two very important functions: protecting property values, and maintaining or, god forbid, even raising the standard for quality of life (and indirectly, maintaining and raising one's property values). Simply put, an individual homeowner gets to rent and/or sell their parcel for more money if they have something that others do not have...a pool in the front yard. What the Chief Brookhaven import does is "help" individuals at the expense of the adjacent neighbors by "interpreting" ...more
By kelbas (30), Southampton on Dec 25, 11 5:15 PM
What makes you think the neighbors do not want a pool to enjoy also? Guess what, if everybody could put in a pool, then everybodies home values would go up.
So let them put in the pool, it will raise property values and increase the quality of life.
Unless your one of those types of people who hate to see others have fun.
By Spinny OHO (94), Speonk on Dec 27, 11 11:24 AM
What makes you think the neighbors do not want a pool to enjoy also? Guess what, if everybody could put in a pool, then everybodies home values would go up.
So let them put in the pool, it will raise property values and increase the quality of life.
Unless your one of those types of people who hate to see others have fun.
By Spinny OHO (94), Speonk on Dec 27, 11 11:24 AM
1 member liked this comment
Maybe they should just go to the beach....the most beautiful beaches in the world are less than a mile away.
By SHNative (554), Southampton on Dec 28, 11 9:06 AM
1 member liked this comment
Im disappointed! I wanted case precedent so I could get a pool in my front yard. I want to float in the pool with a cold beverage and wave to all my neighbors as they drive by!
By North Sea Citizen (568), North Sea on Dec 29, 11 8:14 AM