East Hampton Town restricts the size of accessory structures to 600 s.f. (each) with no plumbing. However, because of a long history of artists in the Town (e.g., Pollock, Willem and Elaine DeKooning), an artist’s studio is allowed to have a sink and to be as large as 2,500 s.f., depending on the size of the main house. Of course, you have to be an artist to have an artist’s studio: an “artist’s studio” may be “used only by an individual working in the fine arts on a professional basis.”
For a long time, the building inspector’s office approved artists and their respective artist’s studio expanded accessory structure (greater than 600 s.f.). The building inspector’s office was a bit loosey-goosey, allowing, for example, studios for knitting sweaters and the like. A few years ago, the Town tightened up the standards and required town board approval of the “artist” in accordance with the definition set forth in the town code. The approval is now being transferred to the planning board.
Approval of an artist’s studio requires recording a covenant stating that the non-conforming aspects of the approved studio (the sink and size over 600 s.f.) must be removed once the approved artist’s studio use is discontinued – usually because of the sale of the property to someone without an approved artist in the family. These covenants were almost universally ignored – until recently. The Town is now on a tear to get rid of artists’ studios without artists. The town is screening properties and owners and sending letters to non-artist owners of properties with an approved artist’s studio advising that the approval will expire in six months and that they must cease and desist from occupancy when the artist’s use ceases. The requirement to cease occupancy is usually included in the recorded covenant that was required when the use was approved.
There has been no litigation over the cease and desist regime, at least not so far. For those who have received the cease and desist letter, or expect to receive one at some time in the future, the available remedies are as follows:
- Town board (or planning board) approval of the new owner as a bona fide artist. This is notably harder than it used to be when applicants pushed the envelope to include studios for knitting sweaters or home repair of furniture. The standards for compliance set forth in the Code include an application by the artist, who must then comply with the definition of an “artist” set forth in the code. A person with training, but without exhibitions, might get approval; this is probably not the case for the sweater-knitter or home furniture repair ‘artist’.
- Obtain a variance to keep the existing building. This probably would not work to keep the sink, but might work in particular circumstances – such as keeping a second floor studio space due to the cost associated with removing it. The normal balancing test for zoning variances (benefit to applicant v. detriment to neighborhood and community) would apply. The town planners argue that building owners should not get a variance simply because of the inconvenience of achieving compliance – especially because buyers had notice of the restrictions through the covenants filed. The only variance granted recently was for a 150-year old cottage that had been converted to an artist’s studio and then sold by the artist to a non-artist.
- Achieve compliance – removing plumbing and reducing size to 600 square feet.
- Size reduction by conversion. Actually making the whole building smaller (or the whole second floor smaller) can be both difficult and expensive. Size reduction by converting a part of the structure to storage might work. In the past, the building department has issued updated certificates of occupancy when a portion of the artist’s studio is converted to non-habitable storage space and is separated from the rest of the studio. That portion is then not counted as habitable gross floor area, reducing the habitable size of the accessory structure to 600 s.f., thereby conforming to the accessory limits. This may require a separate entrance to the storage area, no connection between the storage area and the remaining 600 s.f. portion, removal of insulation, etc. and even lowering the joists/cross beams to a non-habitable height, such as five feet.
- Litigation challenging the statute on fundamental constitutional issues is feasible. No one wants to go that route, at least so far, because the time and cost is impractical.