Guest Spot: The absence of law in Riverhead Town

A recent News-Review headline read “Town probes legality of new house” in South Jamesport. Here’s how a follow-up headline could read: “Town finds house illegal, declines to act.” When laws aren’t enforced, they might as well not exist.

Here are things on which town attorney Bob Kozakiewicz and I agree:

• The house being built requires zoning variances.

• Variances issued for this property expired years ago.

• The Riverhead building department instructed the owner last December to secure variances; he did not.

• Construction was allowed to go forward on a structure that is inherently illegal.

• No action has been taken by the town since this was questioned — months ago.

Much about this complex matter is murky or disputed, but those things are clear.

In early May, I suggested halting work on the project might be appropriate until questions could be answered. The town attorney commented to me he “thought it kind of odd” that the building department did not say — in December — that “no further work shall be done.” He also indicated a stop work order would be requested, but no stop work order was issued.

I emphasized that, if the project is at risk, no one is doing the owner any favors by delaying action. When someone’s spending $10,000 per week, why wait 10 weeks to tell him he must get zoning exceptions or can’t occupy his house? It makes violations harder to correct and increases the odds he’ll sue the town.

When I asked the town attorney whose interests were served by waiting, he declined to respond.

This all started with a question, not a complaint. A construction site lacked a permit, so I asked the building department about the matter. “Yes, a permit must be posted,” I was told. I said, “Well, this project needs one.”

With no permit in evidence two months later, I checked the file. I found far too many problems to list here, but here are a few highlights (beyond the missing variances):

• A county health department-approved site plan says “one-story house.”

• The site and building plans disagree on house height above grade.

• The original property owner says the natural grade was raised 3 feet before the referenced survey; he wrote to the building department that the house still violates height limits.

• The building plans say site elevation is 83 feet. (No land in South Jamesport is 83 feet high).

• The plans sometimes describe a 2-foot crawl space and sometimes an 8-foot basement — but it can’t be both. (The house has a big Bilco cellar door that isn’t on the plans and appears to breach setbacks).

• There are two “attics.” One is where you’d expect. The other adjoins second floor bedrooms — 350 square feet, insulated, with a standard door, four big windows and a loft ceiling. (Will this remain “unfinished attic storage” after the inspectors leave?)

I didn’t file a complaint but inquired of the town attorney’s office. It was then suggested I write to the Town Board. I detailed apparent problems and said an investigation seemed in order. That was May 6.

On May 9, Supervisor Sean Walter copied me on a note to Mr. Kozakiewicz, directing him to have code enforcement check it out and report back.

On May 16, Mr. Kozakiewicz told me he was researching the matter. Work continued, and still no permit.

On July 8, Mr. Kozakiewicz said he planned to ask the building department to determine whether there is a basement, and to direct the owner to apply for new variances.

Think about that. Two months after the Town Board was alerted to the apparently illegal project, and eight months after the building department began inspections, the town had not yet determined if there the house had a basement.

One thing did happen after the Town Board was alerted; the building department issued a permit that predates the owner’s application! He applied Nov. 19, 2010. The building department responded Dec. 14, 2010 that he must get variances, then this June issued a permit dated Nov. 3, creating the illusion that everything’s fine. It’s like stamping “kosher” on a ham.

I won’t speculate on why all this happened but note that I’ve had many satisfactory dealings with the building department. And I’ve watched a dozen neighbors build or renovate in as many years, without issues. This is different.

The planning department fought hard to oppose creation of this tiny lot. Why the Zoning Board of Appeals allowed this odd subdivision just 10 days before new zoning was enacted remains a mystery. It was vacant land, bought by an up-island speculator after the town Master Plan was announced. He knew when he purchased that it couldn’t be split; there was no “hardship.”

The ZBA, whose members we don’t elect, has absolute power. Through one decision at a time, they can override and invalidate the Master Plan. In this case, with some members appointed by an administration that has denounced zoning rules, the odds seem high they’ll approve this mansion sitting on 16,000 square feet of land, where the minimum lot is 40,000 square feet.

Still, getting a variance is the law. If we stop requiring that owners follow rules and procedures, we give up even the pretense of a town governed by laws, equitably, with just one class of citizen. That’s unthinkable.

Larry Simms is a principal in a commercial flooring technology firm.  He owns a house in South Jamesport.