HomeMy WebLinkAboutZBA-02/01/1990 HEARING - ` SOUTHOLD TOWN ZONING BOARD OF APPEALS
1 COUNTY OF SUFFOLK : STATE OF NEW YORK .
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3 SOUTHOLD TOWN ZONING BOARD OF APPEALS
4 PUBLIC HEARING
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6 Main Road, Route 25.
Southold, New York 11971
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February 1, 1990
8 7 : 30 P.M.
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B E F O R E
10 .
GERARD P. GOEHRINGER,
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Chairman
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15 BOARD MEMBERS:
16 CHARLES GRIGONIS, JR.
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f 17 SERGE DOYEN, .JR.
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18 JOSEPH H. ' SAWICKI
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19 JAMES DINIZIO, JR.
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20 Doreen Ferwerda ,
Secretary to . Board
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2 THE CHAIRMAN: This is the regular
3 monthly meeting of the .Southold Town Zoning
4 Board of Appeals . We welcome you all here.
5 Appeal Number 3902 , on behalf of
6 Henry Hunstein. . ,The notice reads as
7 follows : .-Application Number 3902 , variance
8 to the Zoning Ordinance, Article III A.
g Section 100-30 . 3; (100-33) , as disapproved,
10 for permission to construct accessory
11 building in front yard area. Property
12 Location: 90 Kimberly Lane and 135 North
13 Bayview. Road, Southold, County Tax Map No.
14 1000 , Section 70 , Block 13 , Lot 20 . 20 .
15 I have a copy of the survey, the most
16 recent date, May 18, 1989, indicating a two-
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F17 story frame house and garage, and the nature
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18 of this application is a storage building
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19 approximately 60 feet in the rear of this
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20 premises and approximately 60 feet from High
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s 21 Neck Road. I have a copy of the Southold
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22 Town Tax Map indicating the surrounding-
23 properties of the area.
24 Is there anyone who would like to be
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heard? Mr . Hunstein, could you give the
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approximate size of the building, sir?
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MR. HUNSTEIN: Sixteen by twenty.
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THE CHAIRMAN: Will you have any
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facilities in this building at all , such as
6 electricity?
7 MR. HUNSTEIN: Just electricity.
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THE CHAIRMAN: We have a normal
s process that we p put a restriction on, that
10 it is only to be used for storage. Do you
11 have an objection to that?
12 MR. HUNSTEIN: No.
13 THE CHAIRMAN: Thank you very much.
14 Anybody else who would like to be
15 heard on behalf of this application?
16 Anybody who would like to speak against the
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17 application? Any members?
18 Not havingan further
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y questions , I
19 make a motion to close the hearing. All in
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favor . . .
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21 BOARD MEMBERS: Aye.
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22 THE CHAIRMAN: We will have a
23 decision for you in a few weeks , sir. We
24 thank you very much for coming in.
25 Appeal Number 3901 , on behalf of
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Thomas Eschmann. The notice reads as
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follows : Upon Application Number 3901, on
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behalf of Thomas Eschmann, variance to
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Zoning Ordinance', Article III A, ' Section
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100-30 A. 4, (100-33) , as disapproved, for
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permission to construct accessory building
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in the front yard area and accessory shower
9 in side yard area. Property Location: 495
10 Mesrobian Drive, Laurel , County Tax Map
11 Number 1000 , Section 145, Block 4, Lot 10 .
12 I have a copy of the survey, dated
13 October 27 , 1989, which is produced by
14 Robert Van Tuyl , P.C. , which indicates on
15 the survey and the nature of this applica-
16 tion, a two and a half. story frame house, in
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17 the front yard area a shed approximately
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18 three and a half feet from the west property
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19 line, and a shower in the side yard on 'the
20 east side. We asked the applicant the
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21 approximate size of the structures and I
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22 have copy of the County Tax Map which in-
23 dicates this and the 'surroundin
g properties
24 in the area.
25 Is .there anyone who would like to
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be heard?
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MR. ESCHMANN: Yes .
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THE CHAIRMAN: Are .you the applicant?
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MR. ESCHMANN: Yes . My name is
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Thomas Eschmann.
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THE CHAIRMAN: Thank you.
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MR. ESCHMANN: I would like to
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correct the record on the first one. The
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accessory building . . . I have a copy of the
11 C.O. , which is dated 1.973 .
12 THE CHAIRMAN: That is the one that
13 is presently there?
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MR. ESCHMANN: Yes, a metal shed
15 approximately .six feet by . . . approximately
16 six feet by six feet . It is a metal shed on
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17 the right-hand side. I bought the house in.
"s 18 ' 87 . In approximately two months, I guess ,
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= 19 January of ' 88 , I hired a handyman to put
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20 the shower, which is approximately 15 feet
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21 from the house. It was through a real
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22 estate.- agent I did it. I was never
23 informed, and he didn' t tell me, that a.
24 permit was needed at the time. Its approxi-
25 mate size is approx-imately three . . .
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three by four feet . It is set in concrete
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. . .four posts . . . which is approximately
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two feet, in the concrete post and there is
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gravel and a catch basin underneath it . It
6 is away from the house, about ten or twelve
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feet mainly so it won' t run in the founda
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tion. It is used quite a bit .
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The street I live on is a private
10 road and the road ends right at the edge of
11 my house. This . . . from the survey you can
12 see it is . . . I would say the shower is
13 approximately twelve feet from the front
14 line of the house, 84 feet from the private
15 road.
16 I notice that the letters went out .
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17 I have not heard any objection, as far as
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18 the neighbors are concerned. The neighbor
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19 behind me, there is a seven foot hedge that
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20 can' t be seen. It is an ideal spot for
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21 that, because on the other side of the house
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22 there is no place for it and the only other
23 ,,thing to� put it is against. the house. It is
24 all grass on that side, which I can show you
25 in the picture. I guess that 's about it.
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THE CHAIRMAN: You said, Mr.
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Eschmann, the shower is approximately 15
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feet from your house:
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MR. ESCHMANN: To the right, yes .
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THE CHAIRMAN: The only thing we are
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concerned about is closing up side yards on
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any waterfront areas, mainly so that access
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can be gained to the rear yard area. . . .
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which is the waterfront area . . . for either
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emergencies , bulkheading purposes, or for
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access if you are to have a fire on the main
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part of the. dwelling.
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MR. ESCHMANN: I had a room. The
15 inspector came down. I added a room on the
16 front of the house facing the water. They
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17 drove the concrete truck between this shower
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and my house to put the foundation in, which
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19 I got the permit. That was about six
20 months , as we added that , and there is a
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good 15 feet between the shower and my
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22 house. The concrete truck went through to
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pour the foundation.
24 THE CHAIRMAN: . So in granting this
25 application, assuming the Board does, we
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2 wouldn't do it tonight, but assuming . . .
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there would be a restriction you would not
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be permitted to close up that side yard any
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more than what it is closed up now . . . okay,
6 to allow for that access .
7 MR. ESCHMAN: Fine.
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THE CHAIRMAN: Just so that you are
9 aware of that .
10 Secondly, the only other thing I
11 might suggest , as maybe part of this
12 decision, if the Board . is so inclined to
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grant it, is that you possibly plant some
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privet along the shower itself so as to take
15 some of that stark effect away from the
16 cylindrical type of buildingas
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you 'look at
17 it from the road. I will offer that when we
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18 are actually deliberating on the applica-
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= 19 tion. Apart from that , I have no objection.
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20 MR. ESCHMANN: Do you want a copy of
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21 the certificate of occupancy?
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22 THE CHAIRMAN: Sure. Thank you. We
23 thank you very much, sir.
24 Is there anybody else that would like
25 !.to speak in favor of� this application?
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Anybody who would like to speak against the
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application? Anything from the Board
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members? No.
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Having no further questions, I make a
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motion closing this hearing and reaching a
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decision at a later time.
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BOARD MEMBERS: Second.
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THE CHAIRMAN: All in favor?
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BOARD MEMBERS: Aye.
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THE CHAIRMAN: The next appeal is
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Number 3905 , on behalf of Anthony-J.
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Mercorella. The legal notice reads as
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follows :. Application Number 3905 , Anthony
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J . Mercorella, variance to the Zoning
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Ordinance, Article XXIII , Section 100-239. 4B
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as disapproved, for permission to construct
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deck addition to dwelling, proposed con-
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= struction will be less than 75 feet from the
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20 bulkhead. Property location: 2260 Great
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Peconic .Bay Boulevard; Laurel , County Tax
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22 Map Number 1000 , Section 145, Block 4,
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Lot 4.
24 I have a copy of the sketch of the
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survey, which I can' t read a date on it,
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the proposed deck is on the west side of
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this particular dwelling which sits almost
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directly in the center of the lot and it is
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surrounded by water on two sides; on the
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west .side and on the south side. I have a
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copy of the Suffolk County Tax Map indica-
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ting this and surrounding properties -in the
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area. Could I ask you a couple of
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questions?
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(Marie Mercorella appearing for
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Anthony J . Mercorella. )
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MRS. MERCORELLA: Sure.
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THE CHAIRMAN: Thank you. Is the
15 deck going to be enclosed in any way?
16 MRS. MERCORELLA: No.
0 17 THE CHAIRMAN: It will be open?
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18 MRS. MERCORELLA: Open deck.
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19 THE CHAIRMAN: Do you know the
20 approximate size?
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21 MRS. 'MERCORELLA: Well , we wanted to
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22 make it the length of the house. I think
23 that is about 44 feet , something like that ,
24 and about 12 feet wide.
25 THE CHAIRMAN: Do you have any idea
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what the closest point to' the water would
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be? It, is. nothing you have to do right now,
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but would you just . . . when you put that
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stake 12 feet out, would you measure it from
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there to the bulkheading and give us a call
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helpful in dealing with the decision. We
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thank you very much.
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Is there anybody else that would like
11 to speak in favor of this application?
12 Anybody that would like to speak against the
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application?
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Hearing no further comments, I make a
15 motion to close the hearing and reserve
16 decision until a later time. All in favor?
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BOARD MEMBERS: Aye,
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18 THE CHAIRMAN: This appeal is in
= 19 behalf of Harriet Spilman, Appeal Number
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20 . 3904. The legal notice reads as follows :
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21 Application Number 3904, Harriet Spilman,
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22 variance to the Zoning Ordinance, Article
23 XXIII , Section 100-239 . 4 B, for permission
24 to construct addition to existing dwelling.
25 Proposed construction will be less than
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2 75 feet from the bulkhead. Property loca-
3 tion: 1730 West Creek, Avenue, Cutchogue,
4 County Tax Map Number 1000 , Section 110 ,
5 Block 1, Lot 7 . 3 .
6 I 've got a copy of the survey, most
7 recent dated January, 2 , 1990 , produced by
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8 Robert Van Tuyl , P.C. , indicating a one and
9 one half story frame house on West Creek
10 Avenue, in Cutchogue. The house is
11 basically bulkheaded on all sides , except.
12 for the road beside the bulkhead. The
13 nature of this application is a proposed
14 addition. In this particular case it would
15 be the side yard of the house, which would
16 be towards the west and on the south side of
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17 the house. The 'west side would be approxi-
1s mately 11 feet at its closest point; on the
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19 south side would be about 11 1/2 feet at its
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° 20 closest point . I have a copy of the Suffolk
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21 County Tax Map indicating this and
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22 surrounding properties in the area and per
23 DEC permits . Is there anybody that would
24 like to be heard on this application?
25 MS. HAGEN: Karen Hagen, P.O. Box
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-1424, Main Road, Mattituck, New York.
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I think the hardship is clear in this
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case, as you said, because it 'is surrounded
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on the three sides by. the bulkheads and also
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because of its proximity to the street . I
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believe it is about 18 feet from the street .
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I think that the purpose of this particular
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code section is to protect the surrounding
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wetlands and the DEC waiver, which you have
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in there, accounts for that and I have been
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advised by the Trustees ' office that waiver
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will be forthcoming from their office as
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well , within the next couple of days .
15 So I urge you to keep the record open
16 until you receive a copy of that waiver,
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17 which they have instructed me they will
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deliver to you.
= 19 THE CHAIRMAN: I don' t have the
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20 approximate size of these decks . Of course,
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21 we could scale them, if you don' t have. them
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22 handy tonight .. Could you just either call
23 us or send us a brief notice indicating the
24 lineal feet of the deck, of the addition?
25 MS. HAGEN: Yes, I can get the plans
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2 and I can call on that .
3 °THE CHAIRMAN: Wonderful . Is there
4 anybody else that "would like to speak in
5 fav&r 'of this application? ' Anybody that
6 would like to speak against the application?
Yes , from a Board member .
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S MR. DINIZIO: Yes, I would like to
9 see the elevation map on this too, if we
10 could.
11 MS. HAGEN: I could have the surveyor
12 add them, if you feel it is necessary.
13 MR. DINIZIO: I would like to see the
14 elevation.
15 MS. HAGEN: Can I ask the reason?
16 . MR. DINIZIO: I am concerned about
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17 the bulkhead and just how high above the
18 mean high water . . .
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_ 19 MS. HAGEN: Well , I ' ll have the
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20 surveyor add that .
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21. THE CHAIRMAN: Let me ask you a
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22 question, Karen. There is , of course,
23 probably no possibility of any type of
24 basement being placed in this structure. I
25 think I am correct on that .
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MS. HAGEN: That is correct .
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THE CHAIRMAN: So these additions
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Would be _mainly above or in line with the
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present grade that the house is on, at this
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particular time.
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MS. HAGEN: Yes .
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THE CHAIRMAN: Could we refer to. this
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as a cottage? Is this going to be made into
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a year-round house?
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MS. HAGEN: Yes , it is .
12 THE CHAIRMAN: Thank you very much.
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MS. HAGEN: Okay.
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THE CHAIRMAN: Hearing no further
15 comments , I make a motion closing the
16 hearing pending the receipt- of the elevation
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17 map and the, lineal footage that we request
18 in reference to the size of the addition and
19 the Trustees' waiver.
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20 Hearing no further comments , I make a
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21 motion to close the hearing subject to these
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particular conditions .
23 BOARD MEMBERS: Second.
24 THE CHAIRMAN: All in favor?
25 BOARD MEMBERS: Aye.
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2 THE CHAIRMAN: The next appeal is in
3 behalf of Gerhard Schremmer, Appeal Number
4 3900 . . The legal notice reads as follows :
5 Upon Application Number 3900 , Gerhard
6 Schremmer, variance to the Zoning Ordinance,
Article XXIV, Section 100-244 B, for per-
m mission to construct a one family dwelling,
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9 proposed construction will have insufficient
10 front and side yard setbacks , lot has in-
sufficient width. Property location: 1380
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Oak Drive, Southold, County Tax Map Number
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1000 , Section 080 , Block 02 , Lot 001 .
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A copy of the survey indicating the
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map was . . . I 'm sorry . . . most recent date
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on the map was August 1 , 1988 , produced by
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Croaerick Surveyors, indicating a proposed
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LL house 28 feet from West Shore Drive, 27 feet
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from Oak Drive, 10 feet from the rear
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side yards . I have a copy of the Suffolk
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surrounding properties in the area.
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Is there somebody who would like to
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speak?
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MR. BRUER: Rudolph Bruer, on behalf
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of the application, Main Road, Southold,
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P.O. Box 1466.
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The problem here is that the property
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here -was developed in 1931, known as. Radiant
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Shores, 27 years prior to the existence of
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zoning is Southold. Town. My clients had
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entered into a -contract on June 30 , 1988,
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with respect to the purchase of this pro-
11 perty ' for` a. purchase price of some $85 ,000 .
12 What their initial reaction was, that they
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know and knew that the property was small
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with .respect to the present requirements of
15 the Town, but also knew that they liked
16 living in Radiant Shores , having friends
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17 there and that this was a valid lot .
18 I believe the Board has in its file a
19 vacant land certificate of occupancy, issued
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20 by the Town of Southold, I believe dated
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21 1984, and it was based upon that representa-
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22 tion of that vacant land C.O. that we
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23 entered into this contract of construction.
24 We know that the C.O. requires that you get
25 the various , and it so states , the various
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2 other approvals with respect to the require-
3 ments of a building. The contract that we
4 have is a contract that is conditioned upon
5 being able to build and, as you know from
6 the application here, there are two things
7 that we must do: One, we have a 65-foot lot
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8 in an area that requires 80 feet in width.
9 We also have a unique situation in that the
10 property is fronting on two roads , which
11 requi res' 'two front yards . If it was on 'an
12 interior lot, we would n.ot need.
13 Next, the second variance we would
14 just be asking the Board for . is a variance
15 with respect to the lot width. Without the
16 variance for the side yards , we- would be
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17 stuck with a 15-foot wide house, which I
18 don' t think anybody in this town particu- .
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19 larly wants, and it would look like a long,
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20 long trailer. It would look like something
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21 from way down west or the early Queens, and
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22 I don' t think anybody would be particularly
23 interested in owning or living in such a
24 residence.
25 The first thing that we did was that
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2 we realized that we had a problem with the
3 Suffolk County Health Department, and we
4 spent a p great deal of time to .date with the
5 Health Department . To wit, we made the
6 application to the Health Department . It
7 was denied, with the request that if you
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8 wanted a variance you could go to the Board
9 of Review. I believe the Board knows the
10 length of time it takes _to get to and
11 through the Board of Review, which we have
12 gone -through, and they have approved the
13 water systems . I will submit , along with a
14 copy of the contract, the Board of Review's
15 letter of approval .
16 I will also show the Board, I think
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17 if you have not looked at the Tax Map, we
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18 have highlighted the various lots in the
19 area showing the lots that are of similar
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20 size or smaller. At this point I think I
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21 would like to submit those maps, a copy of
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22 the C.O. , a copy of the contract, and the
23 Board of Review's letter.
24 THE CHAIRMAN: Thank you.
25 MR. BREUR: Here are three copies to
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pass around, .the Board of Review's approval
3 of the water and, as promised, highlighted
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maps of the subdivisions showing the lots
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similar.
6 THE CHAIRMAN: Could I just ask you
one question, Mr. Breur?
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8 MR. BREUR: Yes .
9 THE CHAIRMAN: This lot was never
10 part of any of the two surrounding lots . - It
11 is continuous , is that correct? In other
12 words, it was never divided from any one of
13 those two lots .
14 MR. BREUR:. I have a single and
15 separate search, if you would like to see
16 that, and it would show that in 19 -- I
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17 think it was ' 88 -- Mr. Schremmer purchased
" 18 the property from, I believe, the estate of
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19 Toothacker (phonetic spelling) , and Tooth-
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20 acker owned this lot, and I guess the lot to
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21 the south, we believe, but in looking at
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22 that it would be this lot here (indicating) ,
23 that would be this lot to have been imprac-
24 tical in its existence.
25 I would like to point out that we
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have proceeded to this point and have
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recently inquired of the Building Inspector
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again of this C.O. of 1984. As far as they
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can see, it is a proper C.O. and of which
6 based upon which today Mr. DeSalvo
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(phonetic spelling) has spent over 2 , 470
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some-odd dollars for the various application
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fees, test wells , border review, and various
10 fees . I could give you a breakdown of every
11 one, if you want . ,
12 THE CHAIRMAN: No, it is not
13 necessary. Could you just afford us a copy
14 of the single and separate search?
15 •MR. . BREUR: You will notice it only
16 goes. back to, I think, 1982 . Not to belabor
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17 the point, but I think the Board can see the
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18 financial hardship here. The other lot that
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20 been sold, I think in ' 88 . I had nothing to
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21 do with that transaction, but it has been
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22 sold. It has been mortgaged. It has a new
23 owner. It is not in the control of Mr.
24 Schremmer at this time.
25 The hardship, as .you can see, is
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that this -lot will be useless . It is worth
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.$85 ,000 . It is a nice lot . We already
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expended, as we said, $2 , 471 . 50 on this .
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Again, the practical difficulty is that the
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lot again was created in 1931, and the
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financial hardship is already stated, as you
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can see . from the signed contract before you.
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The few remaining points I would like
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to say is that this application here is very
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unique. There are very few lots , very few
12 lots left in this subdivision. They all
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have been built upon. The community has
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developed from what was once strictly a
15 summer community . . . it ,is almost a majority
16 of all year-round residences . A house, one
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17 of this one structure on this lot , would not
18 change the character of the community and
i9 that you would just be adding one house,
20 probably meeting the more modern standards
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21 of the Town and the community than the
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22 existing houses that are there.
23 For the Board's review, I would like
24 to show a picture of the proposed house the
25 DeSalvos intend to put on the premises .
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THE CHAIRMAN: Thank you, sir. Thank
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you very much, Mr. Breur. We will have a
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decision for you in a couple of weeks . We
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appreciate it .
s I.s there anybody else that would like
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to speak in favor of this application? Is
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there anybody that would like to speak
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against the application?
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MR. SCHAEFFLER: My name is Mr.
11 Schaeffler. I live on Oak Drive, 1245 Oak
12 Drive. Is there any restriction on the size
13
of the building that would go on this
14
. -p.roperty, due to the fact that it doesn' t
15 meet the requirement size lot? In other
16 words ,. I-would hate to,. see a two and a half
17 story building go on a tiny little lot .
18 THE CHAIRMAN: Well , I believe the
= 19 code, and I could stand corrected, I believe
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20 the code says he could build a '35 feet .
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21 What they have
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22 two story dwelling
, which you are welcome to
.23 look at .
24 MR. SCHAEFFLER: It' ap
pears it would
25 enhance the area. I see. Thank you much.
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2 It is much . . , you know . . . I have seen some
3 of these narrow, huge rows here.
4 THE CHAIRMAN: I think that is what
5 they are trying to prevent .
6 MR. SCHAEFFLER: I appreciate the
7 type of house. Thank you.
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8 MR. BREUR: You' re very welcome, sir.
9 MR. COMANDO: My name ,is Michael
10 Comando. I have the property adjacent . I
11 only want to express my concern. I am not
12 speaking for or against the situation, but
13 my well will have to be relocated., I am
14 assuming. I have had several correspon-
15 dences from Mr. Breur indicating that was
16 the case and my concern is that the expense
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17 that could be involved .after relocating my
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18 well , in the event I have a problem with the
= i9 new well , and subsequently have to dig
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20 another well , where that will be located in
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21 relation to the other wells in the neighbor-
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22 hood.
23 The only other thing I was concerned
24 is how far will the houses be apart from
25 each other. I don't know what the Town code
1 �e-
25
2,
is on that , if there is a certain length, a
3 certain distance that has to be between the
4
houses .
5
THE CHAIRMAN:_ To answer your
6
questions, it is 35 feet on your side.
7 MR. COMANDO: But that is my only
m
m
s concern. I am just concerned about the
9 contamination and I assume he would be
10 concerned about the contamination of his .
11 well from my cesspool , as well .
12 THE CHAIRMAN: Thank you.
13 Mr. Breur, anything in rebuttal?
14 MR. BREUR: Not really. I gave you a
15 copy of the Health Department Board of
16 Review letter, didn' t I? Okay.
17 THE 'CHAIRMAN: Anybody else that
18 would like to speak on this application, for
19 or against? Seeing no hands, I make a
o
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20 motion closing the hearing, reserving
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21 decision until later .
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22 BOARD MEMBERS: Second.
23 THE CHAIRMAN: All in favor?
24 BOARD MEMBERS: Aye.
25 MR. BREUR: Thank you very much.
1 _3!-
26
2 THE CHAIRMAN: The next appeal is in
3 behalf of J. Parker Wickham, Appeal Number
4
3897 . The legal notice reads as follows :
5 An Application Number 3897 - J. Parker
6 Wickham. Variance to the Zoning Ordinance,
7 Article XIII , Section 100-132 , for
s
permission to construct a building for
s antique vehicles, proposed construction will
10 have bulk, area and parking regulations and
11 insufficient side yard setback. Property
12 location: 410 Airway Drive, Mattituck,
13 County Tax Map Number 1000 , Section 123 ,
14 Block 01, Lot 02 .
15 I have a copy, actually it is a site
16 plan of the entire airport . It is a copy
0
0
17 that belongs to Mr. Wickham. ' You just want
18 to read the- date off that serial number one,
's
19 October 5, 1989, by ,Robert- Van Tuyl , P.C.
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_
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20 The nature of this application is a
0
21 proposed storage building on the west side
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22 of the property adjacent to an existing
23 storage building which antique cars are
24 housed, and I have a copy of the Suffolk
25 County .Tax Map indicating this and
27
2
surrounding properties in the area. Would
3
anyone like to be heard?
4
Mr. Wickham?
5
MR. WICKHAM: The cars just keep
6 coming, so we have a place for them.
7
THE CHAIRMAN: Could I just ask you a
m
8 question, Mr. Wickham? I notice that you
9
penned in this other area here (indicating) .
10 Now this is the existing cement.
11 MR. WICKHAM: That is correct .
12 THE CHAIRMAN: This is in the nature
13 of this application, which is what you want
14 to enclose right here (indicating)?
15 MR. WICKHAM: That is correct . I
16 asked about this too, at the same time.
0
17 What we are doing . . . the builder already
18 said we might as well go ahead and submit
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= 19 for this too, at the same time. .
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m
20 THE CHAIRMAN: Thank you, sir. I
21 just didn't notice.
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22 'MR. WICKHAM: A We 'added this after .
23 THE CHAIRMAN: Okay. This is an
24 L-shaped addition; approximately 18 by 80 on
25 the north side, approximately 20 by 40 on
�3-
1 28
2 the west side.
3 Is there anybody else that would like
4 to speak in favor of this application? Is
5 there anybody who would like to speak
6 against?
7 Hearing no further comments , I make a
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m
S motion closing the hearing and reserving
9 decision later.
10 BOARD MEMBERS: Second.
11 THE CHAIRMAN: All in favor?
12 BOARD MEMBERS: Aye.
13 THE CHAIRMAN: Thank you very much,
14 Mr. Wickham.
15 Our .next appeal is in behalf of Agnes
16 and Cheryl Pagnozzi , Appeal Number 3899 .
0
0
17 The ' Legal notice reads as follows : Upon
0
is Application Number 3899, Agnes and Cheryl
19 Pagnozzi , variance to the Zoning Ordinance,
m
20 Article XXIV, Section '100-244 B, for per-
21 mission to construct an addition to existing
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22 dwelling, proposed ;construction will have
23 insufficient side yard.. Property location:
24 1450 Jockey Creek Drive, Southold, County
25 Tax Map Number 1000 , Section 70 , Block 5,
0�-
1 29
2 Lot 7 .
3 I have a copy of a survey dated
4 August 20 , 1972 , with contours added on
5 November 13, 1989. We have on this piece of
6 paper, on Jockey Creek, a one story frame
7 house which is approximately 101 feet from
m
8 Jockey Creek Drive, 21 feet from . . . let's
9 see . . . I assume that is the west property
10 line or thereabouts, and 21 feet, plus or
11 minus, from the south property line almost
12 directly in the center of the property. I
13 have a copy of the Suffolk County Tax Map
14 indicating this and surrounding properties
15 in the area.
16 Is there anybody that would like to
0
17 be heard on behalf of the application? Is
18 the applicant here?
0
19 MRS. PAGNOZZI : Yes .
m
20 THE CHAIRMAN: How do you do, Mrs .
21 Pagnozzi . .
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22 MRS. PAGNOZZI : I just wanted to say
23 most of the information .is in the
24 application. It is to construct a second
25 garage to the one car garage we currently
30
2 have on the house. The house was originally
3 built leaving the 11 feet necessary for the
4 additional garage, so that I would have
5 sufficient side yard space at the time of
6 the building. As you gentlemen apparently
7 know, the rules were changed January 1st,
m '
m
8 which now has put me five feet more against
9 the variance. That is basically what I am
10 asking for, the five feet in order . . . just
11 to add the garage.
12 THE CHAIRMAN: Can I just ask you a
13 question? This is not an additional house.
14 It is strictly for a garage. It is an L-
15 shaped . . .
16 MRS . PAGNOZZI : It will just come
0
17 out . There is a rectangle, basically, and
18 it will just come out one side . . . a
= 19 continuation of the house.
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m
20 THE CHAIRMAN: It will remain a one
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21 story house? It will remain one story?
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22 MRS. PAGNOZZ I,: Yes .
23 THE CHAIRMAN: Thank you very much.
24 Anybody else that would like to speak
25 in favor of the application? Anybody
1 31
2 against the application?
3 MEMBER OF THE AUDIENCE: Yes .
4 THE CHAIRMAN: Kindly come up and
5 state your name for the record.
6 MS. SCHNABEL: My name is Louise
7 Schnabel : I live at 1100 Jockey Creek
8 Drive, and I am opposed to the variance for
9 the reason I stated in my letter, which is
10 in your file.
11 I feel that present . resolution
12 limiting the distance to 15 feet from the
13 property line is to protect people like
14 myself from having a building too close to
15 mine. As it is now, our two houses are
16 closer together than any others in our
0
0
17 immediate neighborhood. I do not want to
4 16 lookout my window and see a blank wall so
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19 close. . If you grant this variance ' I feel
that it will lower the value of my property,
m
20
0
21 and I am very much opposed.
THE CHAIRMAN: Thank you very much.
22
23 Is there anybody else that would like to
speak against the application? Questions
24
from the Board members?
25
,3 7_
1 32
2 Hearing no further questions, I make
3 a motion to close the hearing, reserve
4 decision until later, and thank you all for
5
coming in. I appreciate you coming.
6 BOARD MEMBERS: Second.
7 THE CHAIRMAN: All in favor?
m
m
8 BOARD MEMBERS: Aye.
9 THE CHAIRMAN: This next appeal is in
10 behalf of Peconic Bay Vineyards , Appeal
11 Number 3898 . The legal notice reads as
12 follows: Special Exception to the Zoning
13 Ordinance, Article VII ," Section 100-71 B( 6) ,
14 for permission to use existing barn for
15 winery production and storage. Property
16 location: 32180 Main Road, Cutchogue,
0
0
17 County Tax Map Number 1000 , Section 103 ,
18 Block, 01 , Lot 19 . 2 . Copy of a site plan
s
19 produced by Nancy registered
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m
20 architect, most recent date October 2 , 1989 .
a
21 We have here an existing house and
22 surrounding buildings which are in the
23 nature of this application, and in it
24 includes one large barn. . I have copy of the
25 Tax Map indicating this and surrounding
33
2
properties in the area.
3 Is there someone here . . . to
4 represent . . . how do you do?
5 MR. BLUM: Ray Blum, from Main Road,
6 in Cutchogue; I am the applicant and I
7 wanted to remind the Board that it doesn' t
m
8 say that, and it. was not mentioned that this
9 is an extension of an existing special
10 exception which I already have from the
11 property next-door and this is just
12 expanding it into this particular parcel
13 without the addition of putting up some
14 other buildings .
15 THE CHAIRMAN: Can you tell me which
16 building you are anticipating . . . first of
0
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17 all , are you leasing this property or buying
18 this property?
19 MR. BLUM: No, the property was
° 20 purchased by relatives and I am leasing it
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21 from the relatives .
_
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22 THE CHAIRMAN: It comprises this
23 entire piece, all of these buildings?
24 MR. BLUM: Correct .
25 THE CHAIRMAN: What building would
34
2
you be doing retail sales out of?
3 MR. BLUM: The existing building we
4 use on the parcel next-door, and the
5 building we use for the winery is a larger
6 one as was stated before. We are talking
about a three acre parcel joined on another
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8 27 acre parcel which is what is existing . . .
9 THE CHAIRMAN: And all of the
10 existing buildings in some way will be used
11 for winery purposes . The house will house
12 the people that work for you?
13 MR. BLUM: The house is currently
14 rented, and the other barns are used for
15 equipment storage, farm equipment , tractors .
16 THE CHAIRMAN: What about the farm
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17 stands?
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18 MR. BLUM: The farm stand . is up there
s
.19 operating. That was rented, also.
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° 20 THE CHAIRMAN: That will continue ,as
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a
21 a farm stand?
V
2
22 MR. BLUM: Yes . I have no use for
23 it , but it is there, yes . We sell flowers
24 and things like that .
25 THE CHAIRMAN: So no retail sale will
Z1G,
1 35
2 actually come over to this area.
3 MR. BLUM: No.
4 THE CHAIRMAN: You are not antici-
5 pating any retail sales?
6 MR. BLUM: No, because I have a
7 building next-door which is heated, air-
. �
m
8 conditioned, and has been operating for the
9 past seven years .
10 THE CHAIRMAN: We thank you very much
11 for explaining it to us .
12 Is there anybody else that would like
13 to speak concerning this application, either
14 for or against? Seeing no hands, I ask the
15 Board members if there are any questions?
16 MR. DINIZIO: None.
0
0
17 THE CHAIRMAN: Hearing no further
0
18 questions, I make a motion to close the
s
19 hearing and make the decision at a later
20 time.
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21 BOARD MEMBERS: Second.
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22 THE CHAIRMAN: All in favor?
23 BOARD MEMBERS: Aye.
24 THE CHAIRMAN: Thank you very much
25 for coming in.
1 36
2 Our next appeal is Bidwell Wineries ,
3 Appeal Number 3882 . This is a continuation
4 of a prior hearing. So it is not necessary
5 to read the legal notice. I will ask if
6 anybody from the Bidwell Winery is here.
7 How do you do, Mr. Bidwell? When we
m
8 had originally dealt with your application,
s we had seen the building as it presently
10 exists . We had restricted the building to
11 the production . . . the special exception was
12 restricted to the production of wine. At
13 that particular time, there was to be a
14 proposed addition closing that entire area
15 up of the "L" that you see from the road.
16 MR. BIDWELL: That is correct .
v
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17 THE CHAIRMAN: The reason why we
0
0
18 asked you to come in is because now, and I
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19 am only anticipating it , and I really should
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20 let you speak but I am trying to justify it
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0
21 in my own mind, and correct me if I am
22 incorrect, you are selling wine out of the
23 front of the building. You are having a
24 retail sale out of the front of the building
25 and you are either asking us to waive that
1 37
2 condition or to allow you to- sell retail
3 wine out of the present building as it
4 exists without any major addition that is
5 supposed to go on. Is that correct?
6 MR. BIDWELL : The second is correct .
7 THE CHAIRMAN: So therefore, just as
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8 the building exists now is the way it is
9 going to stay or you are anticipating it
10 will stay for a little while.
11 MR. BIDWELL: For a little while.
12 That is correct .'
13 THE CHAIRMAN: How much of the front
14 of that building is actually utilized in
15 retail sale?
16 MR. BIDWELL: It is about a 20 by 20
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17 foot space.
a 18 THE CHAIRMAN: That .is 400 square
0
= 19 feet . That ' s what you' re asking to do.
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20 MR. BIDWELL: Yes .
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21 THE CHAIRMAN: I just want you to
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22 know it would be unkind of me to have you
23 leave here and say if we granted this that
24 would be it, because there are some require-
25 ments by the Planning Board based upon the
1 38
2 site plan of this particular project . So
3 any decisions we- make in .waiving the waiver
4 of that particular situation that we
5 discussed would be subject- to the Planning
6 Board's approval .
MR. BIDWELL: I -understand that.
8 THE CHAIRMAN: I thank you very much
9 for coming in and clearing that issue up for
10 US.
11 MR. BIDWELL : Thank you.
12 THE .CHAIRMAN: Is there anybody else
13 that would like to be heard on behalf of
14 this application? Anybody like to speak
15 against the application? Any question from
16 Board members?
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�. 17 Hearing no further questions, I make
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LL
18 a motion to close the hearing, reserving
19 decision until later.
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20 MR. DINIZIO: Second.
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21 THE CHAIRMAN: All in favor?
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22 BOARD MEMBERS: Aye.
23 THE CHAIRMAN: With the public's
24 indulgence, I would like to take a brief
25 four minute recess . I need a motion.
39
2 MR, SAWICKI : So find.
3 THE CHAIRMAN: All in favor?
4 BOARD MEMBERS: . Aye-
5
(Whereupon, a brief recess was taken
6 and the ,proceeding later. resumed. )
THE CHAIRMAN: Our second to last
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e hearing is in behalf of Robert and Ethelle
9 Schroeder, Appeal Number 3895 . The legal
10 notice reads as follows : Upon application
11 of the applicants , variance for reversal of
12 Building Inspector .for change of use of land
13 and existing building without obtaining a
14 Certificate of Occupancy. Property loca-
15 tion.: 4380 Main Road, East Marion, County
16 Tax Map Number 1000 , Section 35, Block 5 ,
17 Lot 4. .
18
0 I have a copy of a survey dated
= 19 November 19, 1980, indicating a one story
o
m
20 frame gas station, sits in the same location
0
21 . . . only difference I notice based on a
4
2
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22 field visit is that there is a fence in the
23 rear of the property, in the rear of the
24 station itself , some sort of stockade fence.
25 I have a copy of the Suffolk County Tax Map
1 40
2 indicating this and surrounding properties
3 in the area. I 'have a letter in the file, a
4 concerned citizen. Is there anyone that
5 would like to be heard in behalf of the
6 application?,
MR. BRESSLER: Wickham, Wickham and
8 Bressler, P .C. , Main Road, Mattituck, New
9 York; by Eric Bressler.
10 Gentlemen, this is an appeal from a
11 determination or. decision of the Building
12 Inspect,or,` in this case involving an order
13 to remedy a violation issued October 3 ,
14 1988 . The. order to remedy involved three
15 separate types of alleged behavior; one, a
16 change .of use of an existing building
o
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17 without obtaining a Certificate of Occu-
0
18 pancy; two, a change of use of land without
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= 19 obtaining a Certificate of Occupancy, three,
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20 ' changing use of the nonconforming gasoline
0
21 filling station' without obtaining a Certifi-
6
22 cate of Occupancy. `
23 Those are the three items that are
24 listed on this order to remedy. It is
25 important to note, in looking at the order
1 41
2 to remedy, that there is no detail whatso-
3 ever regarding what the nature of the change
4 of use is or what it is that must be
5 remedied immediately. It merely says there
6 is a change .and you are ordered to comply
7 with the law and remedy the conditions
m
m
8 immediately. on that basis alone I believe
9 the Board has the authority to reserve that
10 particular determination. It just doesn' t
11 tell us anything.
12 Secondly, moving to what we believe
13 was intended by this order to remedy, but of
14 course we can' t be absolutely certain, but
15 what we think they are talking about is the
16 parking -of vehicles on the premises . This
o
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17 is upon information and belief , and my
18 statement to. that. effect in no way concedes
x 19 that is what this is about or admits
m
20 anything that is in the order to remedy, but
21 upon information and belief that may be what
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22 this is about. Certainly there is no
23 evidence before this Board as to what this
24 order to remedy is about .
25 Simply speaking, with respect to that
'r
,.y�_
1
42
2 issue, we have submitted, to the Board an
3
abstract of title which shows ownership of
4
this property prior to the zoning and we
5 submit a series of affidavits up 'until a
6 certain point which document the use of that
7 particular piece of property as being
m
m
8
uninterested.
9 The Board will note that as part of
10 this particular chain there are two holes in
11 the chain, and I have an affidavit from
12 Robert Schroeder, Jr . , regarding these
13 particular holes in the chain. I hoped one
14 of the applicants could be here tonight, to
15 speak of his house use from the time of his
16 ownership going forward. However, despite a
0
17 long, lengthy .notice prior to the .time of
18 this hearing, he is unavailable to testify.
= 19 His testimony in substance, I would repre-
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20 sent to the Board, would track what is set
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21 forth in the other affidavit .
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22 THE CHAIRMAN: You don' t have anybody
23 here to discuss this?
24 MR. BRESSLER: No, since my
25 applicants . . . I would introduce
1 43
2 Robert Schroeder, Jr'. 's affidavit to plug
3 the hole, and I would ask forbearance of the
4 Board. in reserving and leaving the hearing
5 open until Mr. Schroeder returns . When this
6 was published, we immediately tried to get
7 in touch with Mr. Schroeder and he was out
8 of town. We would hope he would be back 'by
9 the next Board meeting.
10 I am certain the Board has questions
11 of Mr. Schroeder, as do I . So that is my
12 application, at this particular time.
13 THE CHAIRMAN: Thank you.
14 Is there anybody that would like to
15 speak, either in favor or against this par-
16 ticular project?
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17 MR. BRESSLER: I am handing up the
18 affidavit of- Robert Schroeder, Jr.
19 (Whereupon, a copy of said affidavit
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20 was handed to the Board: )
21 MS. GILLISPIE: My name is Rhoda
22 Gillispie. I live at 221 North Road,
23 Greenport , across the street from Mr.
24 Schroeder' s property. I am here to speak on
25 behalf of my family, my husband, and also
44
2
-
Betty Denningston'. (phonetic spelling) , who,.
3
is' here , and lives directly across from 'Mr.
4
Schroeder's - ptope.rty..
The- obvious 'reason why we strongly
s
oppose what has been, done in the .past, and
7
the court ordered, to, stop the -storing of the
s-
machinery _and 'things related to"Mr.
9
Schroeder's, Sound Shore Excavating Company'
10
(phonetic spelling) , is, number one, the
eyesore ' of what I am looking at across the
street',f_rom me -right..now. . Without , any
13 '
equipment there, except for the occasional. '
14
.trucks that Are still- stored there, it is an
15 eyesore. _just. because of what transpired
16 last,,- whenever, it was last summer with the.
f 17
graffiti all over the building, ''but if- you . .
18 add the 'equipment, and it was before ,the
19
cou'rt..o`rd ere d''.;to: stop keeping it there,
20
literally every square inch' of 'the. property
was .fil" d:'.'wi.th, cranes; sep'''tic tanks,.
22
gravel , and various heavy-duty equipment .
23 The .hazard to traffic on Route -25 is,
24 iri' the 'past, they ..backed• equipment in and ,out
25 of the' ro erty p p y stopping traf f ic-, There is
1 J-B_
45
2 a lot of screeching of brakes . This is a
3 large piece . of equipment going into a small
4 piece of property and it has in the• past
5 caused problems . It is also very noisy,
6 waking up' at six o' clock in the morning to
7 diesel engines being revved up. This is a
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8 residential area with a nonconforming use.
9 Now this is where my question, lies ,.
10 that I do not understand the legalities of
11 the application that has been presented, but
12 a nonconforming use, is it specifically for
13 the purpose of being used as a public
14 gasoline filling station? It is all resi-
15 dential around there. There was on the
16 master plan . . . apparently it is all listed
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17 residential . I realize it is not just this
18 piece of property that is nonconforming, but .
19 it doesn' t specify in the master plan. What
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20 does nonconforming 'use mean?
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21 THE CHAIRMAN: Well , I am not the
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i
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22 greatest authority 'on: nonconforming use, but
23 I will tell you that if this particular
24 building continued after zoning and it was a
25 gasoline station, then assuming that it has
1 ,5/
46
2 been continued in that use without a . . . I
3 will steal a phrase from Mr. Bressler in
4 saying "no holes in the chain" . . . more than
5 two years, then it continues as a gasoline
6 station.
7 MS. GILLISPIE: Okay. That was my
m
m
8 understanding
, and in the five years that we
9 have lived across the street from this
10 property, no gasoline has been served to the
11 public as far as I know of . Now I under-
12 stand, and I did not live there when Mr.
13 Schroeder bought the property, that it
14 started out selling gasoline. So it changed
15 and became Sound Shore Excavating, Incor-
16 porated. I don' t know at what point,
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0
17 because I was not there, but that is not a
0
is change of use business , what the violation
s
= is states it is . Are we talking just about the
m
20 equipment being used on there or the actual
0
21 use of Sound . Shore Excavating Corporation,
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22 which -is in a gasoline filling station?
23 THE CHAIRMAN: I cannot answer that
24 question without having Mr . Schroeder here,
25 and that is where my problem is .
1
47
2
MS. GILLISPIE: I understand that .
3
THE CHAIRMAN: I certainly am
4
perfectly aware of how . . . riding back and
5 forth from the ferry or back and forth on
6 inspection . . . that no gas has been
7 dispensed ever from that building. I will
m
8 be the first to admit that, and I concur
9 with what you are saying. That could very
10 well be a loss of one of his uses . . .
11 consistently. I don' t know at this point .
12 MS. GILLISPIE: That is my question.
13 THE CHAIRMAN: I don' t know at this
14 point . Let ' s wait until he shows and we can
. 15 ask him as series of questions .
16 MS. GILLISPIE: My other question is ,.
0
17 are there zonings specifically for companies
18 requiring heavy-duty machinery? I was told
19 there are. I don' t know this for a fact .
° 20 THE CHAIRMAN: I think they should be
0
21 stored in certain zones . There is no
W
22 question about it .. Again, the Building
23 Inspector will probably be better served to
24 answer that question." ':
25 MS. GILLISPIE: It is obvious .
1 '
48
2 It was a gasoline station. We bought the
3 property knowing that it was supposed to be
4 a gasoline filling station originally and
5 that this was being used as something
6 different . We question whether that
7 something was changed because it sounds to
m
S us, and from other people who have spoken to
9 us, that it was not the use it was intended
10 for and that is would eventually change.
11 I am not ready to move from my
12 property, but I am upset over the thought
13 that this can become a storage of heavy-duty
14 equipment . . . cranes . All this stuff across
15 the street from a residential house certain-
16 ly lowers my property value, but that is not
0
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17 the main point . My main point is that this
18 is not in use as a gasoline station as it
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19 was meant to be, and . it is my understanding
20 it should be reverted back to its original
0
21 use which is residential .
22 THE CHAIRMAN: Thank you.
23 Is there anybody else who would like
24 to be heard?
25 'MR, 'APODIACOS: Terry Apodiacos . .
1 S�-
49
2 I would just like to state that I have been
3 living there for fourteen years now, ever
4 since we bought the house, and never really
5 noticed it to be a gas station except for
6 the first three or four years . . . it was
7 owned by ,a previous man named Don's Garage,
m
8 and ever since the Schroeders moved in I
9 haven' t seen gasoline served to the public .
10 Also, I have sent to you guys, a few
11 months ago, a letter stating all our reasons
12 why we don' t want the zoning to take place;
13 because of the diesel fuel , the noise early
14 in the morning, and the depreciating value
15 of our property, too.
16 THE CHAIRMAN: Thank you.
0
17 MR. APODIACOS: You' re welcome.
18 THE CHAIRMAN: Anybody else who would
= 19, like to speak?
m
20 Go ahead, Mr. Bressler.
0
21 MR. BRESSLER: Mr. Chairman, I think
22 the comments we heard tonight point to the
23 direction with this particular application.
24 The problem that the Board is faced. with
25 again, simply to review the order of remedy,
1 ,J-
50
2
leads me to the conclusion that that ought
3
to be stricken and thrown out, and if truly
4
a problem exists down there that the issue
5
ought to be brought by the Building Depart-
6 ment quickly before the Board. I think the
m
7 simple statement there be a change of use
8 '
has left the objectants , whatever they are
9 objecting to, has left them as bewildered as
10 we are as to how to act or deal with this
11
particular situation, and I think if the
12 _ Board wants to reassess and bring Mr.
13 Schroeder in, that is fine and I would ask
14 the Board to do that if they want to hear
15 from him. But I don' t believe that is going
16 to cure the underlying dissent here which is
0
0
17 that the issues are not clearly in front of
18 the Board and the simple statement that
s
= 19 there be a change of use just has to fall on
20 what will happen after that to bring the
o
21 issues into focus .
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22 THE CHAIRMAN: I 'm thinking about
23 having the Building Inspector here at the
24 next hearing.
25 MR. BRESSLER: That would certainly
1 51
2 be helpful . I am not sure . . . I am not sure
3 that would cure the problem that the Board
4 has with respect to the written determina-
5 tion. I am pretty certain that the law on
6 that issue is you take your notices as .you
7 find them, and while the Building Inspector
8 may augment and complain to the Board what
9 he meant, I don't think that is going to
save the infirmity. I do think it may aid
10
in future resolutions .
11 12 -
I certainly would not be objecting if
13 the Board chose to do that . However,
14 legally speaking, I would object t.o the
significance of what he had to say on the
15
actual application. It may, however, as a
16
practical matter, be beneficial .
0
17
4 THE CHAIRMAN: Thank you.
18
MR. GILLISPIE: Dave Gillispie. I
19
came back from Boston for this hearing and I
° 20
m
o think that all parties should have made the
21
W effort to be here. But there is also one
22
point in here, it says "hardship", that Mr.
23
Schroeder has a hardship if they couldn' t
24
use this property for whatever he wants to
25
1 52
2 use it for, I .guess , no one here is really
3 sure what he wants' to use it for but it is
4 not the filling station.
5 As I understand, he has acquired
6 other property in the Town .of Southold that
7 he can use for his business . So the use of
m
m
s this property or lack of use of this
9 property is not going to harm his income or
10 the people -he employs . I would hope the
11 Board also keep that in mind. Thank you.
12 THE CHAIRMAN: Thank you.
13 Yes, Mr. Bressler.
14 MR. BRESSLER: - Mr. Chairman,' i f I
15 could just address that . I believe, of
16 course, as the Board is aware, a hardship is
e
a
17 not a legal issue here and the fact that it
18 appears on the Board's form or something is
0
19 filled in, I think is ' of no legal signifi-
W
m
20 cance. We are not at this point asking for
a
21 a variance. If we were having a. variance
V
Z
W
22 hardship or a practical difficulty it would
23 be before the Board properly, and to the
24 extent that it caused any confusion or legal
25 misunderstanding to the objectants,.
1 53
2 I apologize for that .
3 THE' CHAIRMAN: . Any other comments
4 from anybody?
5 Will Mr. Schroeder be back on the
6 15th?
MR. GILLISPIE: What date, excuse me?
m
8 THE CHAIRMAN: The 15th of February,
9 two weeks from tonight .
10 MR. GILLISPIE: No, I will be in.
11 Florida.
12 THE CHAIRMAN: Will Mr. Schroeder be
13 back here, Mr. Bressler?
. 14 MR. BRESSLER: I am not certain, Mr.
15 Chairman, and when the assigned date was
16 first sent out we made a diligent attempt to
0
17 contact Mr. Schroeder. I have been advised
18 by Mr. Schroeder' s family that Mr. Schroeder
S
19 has the luxury, unlike some of us , of taking
Z
m
20 vacations without being bothered by the
0
a
21 telephone or other methods of contact.. So
W
22 as soon I find out where he is and when he
23 will be back, I will let you know.
24 THE CHAIRMAN: I guess the best
25 thing to do is recess without a date:
1 54
2 MR. BRESSLER': As soon as he returns ,
3 I will advise the Board by a letter so the
4 hearing can be set , if. that is satisfactory.
5 THE 'CHAIRMAN: Anybody have any
6 objection to that?. Anybody have an objec-
7 tion to our recessing without a date and
m
8 reconvening the hearing .when the applicant
9 is here? Then we will recess without a date
10 on my motion.
11 MR. DINIZIO: I would like to make a
12 statement . I would just like to inform
13 everybody involved in this that I don' t feel
14 I have a problem making a decision one way
15 or the other. My brother-in-law does own
16 land adjacent to this property and across
0
17 the street . You should consider that
0
18 certainly for our next hearing. I certainly
s
19 would not be offended if you don' t want me
m
20 to be here. However, I don' t feel that is
21 anything that would effect . . . I just want
a
z
22 you to know. I know Bob knows ,
23 MR. BRESSLER: I- will remind Mr.
24 Schroeder if he is aware of it . I, can only
25 assume he doesn' t have any objection if you
1 .�6
55
2 don' t view it as a conflict . I will just
3 . remind -him. I am 'sure there will be no
4 difficulty, but if there is we will meet and
5
let you know.
6 THE CHAIRMAN: Hearing no further
7 comments, I make a motion to recess the
m
m
$ hearing without a date.
9 BOARD MEMBERS: Second.
10 THE CHAIRMAN: All in favor?
11 BOARD MEMBERS: Aye.
12 THE CHAIRMAN: I thank you very much
13 for coming in everybody.
14 We are reconvening the hearing on the
15 Port of Egypt, which was reconvened from the
16 last regularly scheduled meeting. At that
0
17 time, I believe we asked you for a map which
18 we presently have in our file. And we asked
s
is you for the single and separate search. I
m
20 guess I should let your attorney speak for
0
21 you.
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22 MR. MOORE: William Moore, of Moore
23 and Moore.
24 I 've got certified copies of deeds of
25 each of the parcels in question. I .trust
1 56
2 that will satisfy the information. If it
3 doesn' t provide the information you need,
4 let me know and _I will get the format you
5 need.
6 THE CHAIRMAN: I 'ask a question
7 tonight, and again my only question is that
m
m
8 my understanding is that the Port of Egypt
. 9 . . . I 'm sorry, that the Liebl.ein (phonetic
10 spelling) family owned the property up and
11 until such time as mid to the latter
12 seventies , at which time the property then
13 became Port of Egypt Enterprise, Inc . , which
14 is certainly still the Lieblein family.
15 This is exclusive of the motel property.
16 MR. MOORE: That is correct . There
0
0
17 was a physical change to the property before
0
18 1946 . . . 1947 .
s
19 MEMBER OF THE AUDIENCE: The property
m
20 was purchased starting 1946 and we purchased
0
. a
21 a parcel , the parcel where the existing
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22 storage building now sits . I think it was
23 purchased in ' 65 . Up until that time it was
24 a boat rental operation.
25 MR. MOORE: I have just given copies
1
57
2
of the deeds including plots across the
3
street, as well . . We are planning on
4
possibly parking across the street . We've
5
got a piece there owned by :Port of Egypt
6 Enterprises , a piece owned by Mr. and Mrs .
7
husband and wife. I have
m
m
8
got deeds for each.
9 If this is not the information or the
10 format you would like, it was not . relayed to
11 me. I went out and got . deeds from the Clerk
12 this morning. I 've spoken to Mr. Willen
13
(phonetic spelling) at another Town meeting
14 and he said affidavits were all we needed.
15 Certified copies of the Tax Map Numbers are
16 changed and it does create some confusion.
= 17 I think you have the most recent tax map
0
18 there. If there is any question regarding
s
= 19 ownership, I can get whatever additional
° 20 information you need.
0
21 THE CHAIRMAN: We very simply want
22 this information for the past Town Attorney.
23 He had requested this information. We
24 reconvened the hearing that was actually
25 closed and we appreciate everything that you
1 58
2 are giving to us .
3 Our only particular problem right
4 now, . and I., will put it right , on the record,
5 we don' t have a present Town Attorney., We
6 have an Assistant Town Attorney in dealing
7 with this and it is upsetting me to some
m
8 degree to tell you that I ' really don't know
9 at this point if we should close the hearing
10 or not . I really don't know what to do.
11 MR. MOORE: The last thing I want you
12 to do is have to close a hearing. I am not
13 comfortable that you have not gotten the
14 information you feel you need. I don't want
15 to cut you short or on the information
16 there.
e
0
17 THE CHAIRMAN: I think the best thing
18 to do is to recess it without a date, and
19 give us a chance to go through the informa-
20 tion for at least the next two weeks and
21 then we will . . . and I am saying this
22 specifically because I am not . . . . I don' t
23 want to enter into another large discussion
24 about this one particular nucleus in this
25 . . . I am going to limit any further
1 59
2 discussion to at least five minutes on
3 everybody's part . . . just for the formality
4 of closing it , if there is anything else
5 that the Town Attorney may require.
6 MR. MOORE: I can still do it .in five
7 minutes . I am asking for that information
m
m
S which will prove useful to you. I can save
9 it until that point . I can organize it by
10 making myself speak quickly and concisely.
11 I think it may actually facilitate the
12 review of the application.
13 THE CHAIRMAN: Thank you very much.
14 MR. MOORE: Thank you. .
15 THE CHAIRMAN: Is there anybody else
16 in the audience that would like to speak
0
17 against this application? Is there anybody
18 else?
0
19 Yes , ma' am.
o
20 MS. BROWN: Betty Brown (phonetic
o
21 spelling) , P.O. Box 57 , Orient , New York.
w
22 The North Fork Environmental Council
23 wishes to express some concern about Appli-
24 cation Number 3770 , for variance request by
25 Port of Egypt . We feel that the application
1
60
2 has not established sufficient evidence of
3 economic hardship or unique circumstances to
4 warrant the variance requested. In addi-
5 tion, the application
pp proposed to reduce the
6 code requirements for parking spaces
7 provided• to- one-half space for each boat in
m
m
8 the water and one-.quarter space for boats in
s dry dock storage. This could permit from
10 two' to four',times as many boats to this
11 marina and incentive for other marinas which
12 would follow the precedent .
13 The code requirements of one space
14 per boat reflect the standards set by
15 neighboring towns which call for one to one-
16 half spaces per boat . Marinas have said
0
17 that a quarter of their slips are presently
's
18 occupied by local residents . The rest are
= 19 rented by people from out of town. There is
m
20 nothing wrong with that except that
0
21 residents of Southold should not be asked to
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22 accept increased pollution from an increased
23 number of boats of non-residents in its
24 creeks and in the bay which has been barely
25 surviving three years of brown tide
s
�lv�-
1 61
2 contamination. Present building at Port of
3 Egypt now covers more than 30 ' percent of
4 available upland- . . . the limitation that is
5 set by the Town code . . . . with the proposed
6 addition the coverage will be far greater
7 than the percentage. I think this
m .
S stretching of the code requirement will also
9 ultimately result in .other marinas seeking
10 to stretch their valuable waterfront
11 property. We observed that application has
12 not allowed for 20 percent landscaping
13 called for by the code.
14 The North Fork Environmental Council
15 believes this application deserves a second
16 hard look. Thank you.
v
0
17 THE CHAIRMAN: Thank you.
0
18 MS . FLETCHER: My name is Linda
19 Fletcher. I am president of the New Suffolk
20 Civic Association representing approximately
0
21 190 members.
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22 Our association objects to the
23 Application Number 3770 , as the North Fork
24 Environmental Council has outlined. The New
25 Suffolk Civic Association has submitted a
41 7-
1 62
2 letter to this effect,, which is included in
3 the file of this application.
4 As residents of New Suffolk, we are
5 especially sensitive to overdevelopment of
6 coastal waters . There presently exists
7 before the Southold Town Planning Board an
m
s application to grossly exploit a parcel of
9 waterfront land in New Suffolk, formerly
10 known . as. the North Fork Shipyard. We feel
11 that approval of Application 3770 before
12 this Board sets a .dang®rbus -precedent for
13 the New Suffolk situation in particular.
14 Thank you. .
15 THE , CHAIRMAN: Thank you. Anybody
16 else that would like to speak?
0
0
17 Yes, sir.
18 MR. RENGANESCHI : Fred Renganeschi .
`s
19 I am president of Browers Wood Association.
m
20 We have written a letter, and my
0
21 question is really, are you in possession of
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22 the letter? I know we got .it in here today.
23 THE CHAIRMAN: Sir, this is my file
24 (indicating) . It is this large. So it
25 would take a half hour to go through it .
i
1 63
2 MR. RENGANESCHI : Would you prefer I
3 read . . .
4 THE CHAIRMAN: No, just give me a
5 copy and we' ll make sure we have it .
6 MR. SAWICKI : We have it .
7 THE CHAIRMAN: We have a copy.
m
8 MR. RENGANESHI :. That 's basically it.
9 Thank you.
10 THE CHAIRMAN: Thank you, Mr. Flynn.
11 Thank you for being so patient .
12 MR. FLYNN: I am a resident of the
13 Town of Southold. If I understand Mr . Moore
14 correctly, it is now evident that they would
15 like .to- change the type of ownership of at
16 least some of the parcels . I call your
0
f 17 attention to -your legal notice, that the
0
4 18 motel property is included. in the legal
19 notice, and also that it is included in the
plan submitted with this original applica-
20
V 21 tion.
0
22 Were you or were the applicants at
23 this late date changing his ownership? He
would have to reinstitute the entire appli-
24
25 cation process . The State agencies and the
1. 64
2 Town agencies have been informed that he
s owns• seven".continuous acres of uplands . . If
4 you are .to reduce that ' area; these, agenc.ies .
5, have to be, informed and they would have to
6 consider the implications ;of. .this proposed
7 monstrous 'project on' 'a-'still smaller portion
$ of land.
9 Now, I -'have prepared a statement that
10 I•; would.. like to'.make•: and•.-1in, the interest - of
11 coherence I would like to' read it . However,
12 t'_would. pr.obab':ly take ..more than twenty-five
13 minutes'. On the other hand, I think at- this
14 late hour, ` my having stayed here, I am owed-
15 that courtesy.
16 THE CHAIRMAN: Sir, • I think you
o .
17 misunderstood me. I ' said there was no
, o
18 :. restriction on the time tonight . I "said at
is the next scheduled meeting.
20 MR FLYNN: I. am sorry. ' I thought
21 you said .five minutes.; I .apologize. I will
W •
22 start off with somewhat of." a statement:
23 The classic defini"tion of 'a good
24 speech is one that :
25 1 . Has a strong. beginning. ..
65
2 2 . Has a'� stron. _ g ending.
3 3 .1 . Not too..much in between.
4 I . am sure I , can meet the first two
5 requirements .. With respect to the- 'third, I
6 shall, try to be as succinct as possible and
7 - at the,. same time 'inform those here present,
s who may not be aware of ',the_ full . ramifica-
s tions -o.f this application, of its full di-
10 mens:ions .and effects. 'I will try to 'be as
11 concise as possible given a complex subject.
12 ',. As' you no doubt surmise; my purpose
13 i.s ;;to create a.'record; . should one be needed
14 in the future.
15 > . .:Byr way ;of °i`nt'r'o.d' on, I was for
16 many years 'a consultant analyzing projects
17 for clients, among- them The Corps 'of Engi
o .
18 neers, the ,NYS Department of' Transportation
19 . and .the NYS- Attorney:.General . In addition, .
W .
20 I have had particular experience with.
21 waterfront properties over a period of some
22 forty years . I will ,glady elucidat.e'. if you
23 request .
24 In my years of experience I'' cannot
25 remember a project 'I consider' so-rapacious
66
2 in intent.. . It compounds variance upon
3 variance .and makes a -mockery -'of' , zoning law,
4 the Town Code- and the recent, Master Plan. --
s in my opinion, what motivates this
6 plan,. is sheer greed. As .Samuel .-Johnson -
7 said, .the applicant seeks profit 'beyond the
$ dreams of averice: ' Unfortunately for the
9 applicant, an increase .in profit-does -not
10 constitute- grounds for a variance.
11 For, those not fully, informed, '-the
12 application 'invol.ves principally:
13
,yC;onstr,uc-timon ,of 'retaining'
14 iinprov:ements,-:whose ,:c`overage_,"would be two and '
15 - a- half• . times that permitted by .the Bulk
16 Schedul{e, of the Town Code
o
n
17 -.,2 . . The creation'.of an additional
18 monstrous degree of' nonconformity on an , -
_ 19 already nonconforming property:
W
20' 3'. Numerous setback .variances
m ,
21 . including .-one which permit the construction
22 of a -building storing 160 or more fuel-
23 laden boats. within 5' feet 'of' an abutting
24 p.roperty; and within 20 feet. of State land.
25 4.. Severing the property by planning
1 67
2 for only the easterly 82 , 480 square feet of
3 the property in a vacuum, as if it were
4 vacant land.
5 5 . . Reducing the code requirement of
6 one parking space per •boat to as little as
7 one-quarter space per boat.
m
8 The ramifications of the first four
9 variances should be evident to- all .
10 The fifth, in my opinion, is an
11 exercise in obfuscation intended to conceal
12 the true intent of the variance sought and
13 its effects on the community.
14 With respect to parking alone, the
15 applicant °s ' planning results in a deficiency
16 of 241 'spaces requiring 1'. 9 additional acres
E 17 of .land.
o
LL 18 To explain this ploy, the Town code
0
s
19 requires 350 square feet of parking space
20 per car. If the marina has 35,000 square
m
s 21 feet of parking area it can accommodate 100
Z
22 cars .
23 The sole control the Town has over
the number of boats a marina can launch is
24
25 the parking ,ratio: One boat per car.
1 �3
68
2 With the type of variance sought , the
3 marina used as an example could theoretical-
4 ly park 400 cars and, in practice, launch
5 400 boats .
6 In short , the variance sought would
7 set a precedent for launching several
m
m
8 thousand more boats in Southold's already
9 overcrowded and polluted waters .
10 Granting such a variance adversely
11 affects our environment and the entire way
12 ' of life in the Town of Southold. Traffic
13 would be quadrupled with particular impact
14 on residential areas . Our vital waterfront
15 and waterborne resources, which the Town's
16 government purports to protect , would be
0
17 destroyed.
18 The marina operators are on record as
= 19 stating that only 25 percent of the boats
m
20 presently accommodated are owned by Southold
0
a
21 residents . This means that 75 percent of
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22 the current number of boats are owned by
23 non-residents . ' If this variance were
24 granted, approximately 15 spaces to every
25 one used by a Southold resident .
1 69
2 Pious claims are made about providing
3 dock space for future needs . If Southold
4 were to double in population at some time in
5 the remote 21st century, present unexpended
6 capacity would still make 50 percent of'
7 capacity available to non-residents .
m
m
8 How far are we expected to go in
9 sacrificing our environment for the benefit
10 of marina operators and non-residents?
11 The Peconic Bay is barely recovering.
12 It is a shared resource for all Towns
13 fronting thereon. Has the Town of Southold
14 the right to unilaterally exploit this
15 common resource by launching into its waters
16 as many as six times the number of boats
0
17 permitted by other Towns?
0
18 Specious economic arguments are
s
19 advanced t,o justify this. quaritum increase in
m
20 the number of boats as a boon to the local
0
a
21 economy. As a matter of fact, the abomina-
Z
22 tion proposed in the subject application
23 would, by the applicant' s, admission, create
24 two new lobs .
25 It is a well-known fact that boaters
1 - 7S-
70
2 coming to Southold enjoy as much time as
3
possible on their boats and spend precious
4 little money locally. The underlying
5
question is who would profit from such an
6 expansion, other than marina operators, and
Sewhat would be the adverse economic effects
m
8 on the rest of the Town's residents?
9 Those of you who read yesterday's
10 Newsday, an article concerning a marina in
11 Northport . It is owned by a conglomerate.
12 Profits are skimmed by the local area. It
13 is proposed to make condominiums of the
14 slips, selling from $50 ,000 to $250 ,000
15 each. To whom? This is a view of the
16 future residents can expect should this
17 variance be granted.
18 This, hearing would -not have taken
's
19 place. but for the. unconscionable act of the
m
20 Planning .,Board. Unbelievably, it issued a
21 negative declaration for a project with such
22 dire implications .'for the' environment and
23 for the health, safety and welfare of Town
24 residents. In my opinion, at best, they
25 never analyzed it. In any event, they
1 7G-
71
2
certainly did not give it the 'hard look, '
3
nor provide the ' reasoned explanation'
4
required by law.
5
I 've analyzed this application
6 thoroughly. If these variances are granted,
m
7 it is the equivalent of the Board' s making a
s
gift to the applicant of the value of 3 1/2
s acres waterfront commercial land.
10
There is no basis in law for granting
11 the variances sought. There is no proof of
12 hardship
or practical difficulty, nor could
13 there be.
14 Under the circumstances , I find it
15 inconceivably strange that tonight repre-
16 sents the fourth hearing before the Board on
0
17 an outrageous application that should have
" 18 been rejected summarily.
0
0
19 In this, a-pplication to the State and
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20 other agencies, the applicant stated owner-
. o
21 ship. 'of. seven (7 ) acres of upland. He now
6
22 claims, for obvious reasons, ownership of
23 4 . 96 acres, or 30 percent less . In addi-
24 tion, he submits calculations of building
25 coverage far less than his own survey
72
2 reveals . Reducing the area of land makes no
3 appreciable difference. There is still a
4 shortage of 3 acres in required area.
5 He now appears to want, in direct
6 conflict with the Town code, to include
7 underwater land in his 'buildable land'
m
S calculations .
9 I confess to being somewhat confused
10 as to the land area involved in the subject
11 application. Does he own 7 acres , 4 . 96
12 acres , 6. 4 acres, or 8 . 4 acres? Does he
13 have .a beneficial interest in the motel or
14 not? He has included the motel lot in his
15 statement of ownership. Which buildings
16 does he include in his calculations, and
s
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17 which does he exclude? I can only work from
1e the data he submitted to the Board along
0
19 with his application.
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m
'20 It really doesn' t matter. He cannot ,
o '
a
21 at this late . date, change the application
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22 previously submitted to the State and Town
23 agencies . To do so he must start the appli-
24 cation procedure all over. . "These agencies
25 would otherwise have no knowledge of either
1 -7�-
73
2 a changed plan or its impacts .
3 In conclusion ' I would like to
4
summarize my objections to this application
5 for the benefit of those here assembled.
6 Some have previously been stated to the
7 Board either verbally, or by written
m
m
S Communication'. However,.-many concerned
s residents are unaware of them.
10 A. The granting of variances is , by
11 law, to be sparingly exercised in rare cir-
12 cumstances .
13 B. Financial hardship 'or practical
14 difficulties/unique circumstances must be
15 proved by the applicant . He has not
16 attempted to prove, nor could be prove,
0
17 either. To prove hardship he would have to
is prove the property is valueless without the
19 variances sought . Some chance! Any claim
m
20 of unique circumstances/practical difficul-
0
21 ties is easily countered as being the
W
22 results of his own actions in developing the
23 proper.ty. ,
24 C. Any attempt to revise, at this
25 late date, the land area encompassed by the
1 74
2 application, or any other attempt at
3 revision including a related subdivision of
4
purported proof , would require a complete
5 reapplication to all the agencies involved
6 and a subsequent public hearing to afford
7 the public an opportunity to challenge the
8 revised data.
9 D. The variances sought are of such
10 a magnitude as to exceed the purview of the
11 Board. While the Board is empowered to
12 modify the ' strict letter' of the law, this
13 application makes a mockerly of almost every
14 facet of the zoning code. In addition, the
15 code enjoins the Board to observe the
16 'spirit ' of the zoning code. Nothing could
f
0
17 violate the spirit of the code more than the
0
18 subject application. In fact , the
= 19 application seeks . a complete rewriting of
m
20 the code. It seeks a rezoning via the back
o ,
21 door.
22 E. The negative impact declaration
23 which pieceeded these hearings was issued
24 without the 'hard look' and ' reasoned
25 explanation' required by law.
1
75
2 No consideration whatsoever was given to the
3 manifest health, safety, welfare and enviro-
4 mental problems that the magnitude of this
5 application would certainly precipitate. It
6 is the Board of Appeals ' duty to .consider
7 these impacts .
Se
8 F. The subject property is noncon-
9 forming in its present state and would
10 become all the more unconscionably so were
11 these 'variances ' granted: The Town code
12 states that it is its purpose to ' reduce or
13 minimize impacts of uses and buildings which
14 do not conform to the use or bulk require- °
15 ments set forth in this chapter . ' The
16 chapter referred to is zoning. It goes on
0
17 to enjoin actions which ' create any new non-
0
18 conformance or increase the degree .of non-
= 19 conformance. ' What is actually sought here
o
20 is the complete abandonment of the newly
o
21 adopted zoning code and Master Plan.
22 G. Granting these variances is
23' tantamount to making the applicant a gift of
24 the utility of ,. and consequently the value
25 of , some 3 . 5 acres of, waterfront commercial
4
76
2 land'. His enrichment would be at the ex-
3
pense of .the ordinary residents of this Town
4
and of their welfare and- environment . -
5 H. Any attempt by the applicant to
6 incorporate wetlands or underwater land as
7 'buildable land' is a clear violation of the
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Town code.
9 In view of the statements above, and
10 elsewhere, it is incomprehensible to me, and
11 to other residents of the Town, that the
12 Board has temporized about this matter to
13 the extent of holding four public hearings
14 and permitting the applicant to introduce
15 statements and data clearly at odds with his
16 original application on file with the
17 various agencies, State and Town, involved.
18 I submit that should the Board grant
= is these variances, and adjudication become
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20 necessary, the Board's action would ' shock
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21 the conscience' of any court .
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22 Finally, if I may be permitted a
23 purely personal comment, the cynicism
24 implicit in this action, and certain cir-
25 cumstances surrounding it, would turn the
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2 stomach of a vulture.
3 Along with these comments , I have
4
here a letter to the Board. It involves
5 many calcuations and citations . Rather than
6 burden those here assembled with its
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technical comments , I would prefer to turn
s it over to the ' Board with the proviso that
9 it be spread on the record. "
10
Thank you.
11 THE CHAIRMAN: Thank you, Mr. Flynn.
12 MR. .MOORE: Mr. Chairman, one quick
13 comment . We have had the four public
14 hearings up to now to allow not only the
15 applicant but interested property owners and
16 residences to have their piece, and that is
17 why 'we had four public hearings even when
18 the comments get repetitive.
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= 19 To save the Board time on this late
20 evening, I will put my comments in writing
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21 to you and get them to your Board in advance
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22 of whenever our next hearing will be so that
23 Mr. Flynn has the benefit of those comments
24 in advance of that meeting. Thank you.
25 THE CHAIRMAN: Thank you.
78
2 MR MOORE: . Is there any word on, the
3 likelihood or .in the. imminent .fut.ure of': a - ,
4 new Town -Attorney?
5 THE CHAIRMAN:' I believe the Board is
6 going to Address Tuesday.: I am with
7 great '-hoping that- the reconvening ofthis
s hearing -wild 'only .be a formality just to
9 close it . -That is what I 'am in great. hope .
10 for. .
11 MR MOORE: As I said a moment - ago, I
12 do not want ..to respond when I. am restricted-
• 13: to: 'five minutes . I will give it t.o you in
14 writing.
15 MR.. LIEBLEIN': William Lieblein: -I
16 am a client of Mr. Moore. "I have just one
17 request .. At the next hearing could we be at
18 the beginning of the hearing instead of the
19 end? , I# it 'is.. going to be . five, minutes per.
20 person, maybe you could .let someone .else.
21 wait ,for a change.
'22 THE CHAIRMAN: I can`t agree with you
23 more.
24 MR. .FLYNN: I would. like to make a
25 .final statement -in response to a. remark that
79
2 was. made .here. I . resent the imputation of
3 my ability to analyze and evaluate. I have
4 been doing -this for forty years for many
5 government agencies and in the State and
6 Federal courts . I therefore welcome the
opportunity for anyone to attempt to prove
8 my calculations wrong. Thank you.
9 THE CHAIRMAN: Thank you.
10 Hearing no further comments , I make
11 the motion to recess without a date, and we
12 will reconvene as soon as we have a chance
13 to discuss this articular p project with the
14 new Town Attorney.
15 MR. DINIZIO: Second.
16 THE CHAIRMAN: All in favor?
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17 BOARD MEMBERS: Aye.
a 18 (Time noted: 16 : 50 p.m. )
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C E R T I F I C A I 0 N
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8 I , GAIL ROSCHEN, do hereby certify that I am
9 an Official Court Reporter and that the foregoing
10 constitutes a true and correct transcript according
11 to my official stenographic notes .
12
13
GAIL ROSCHEN
14 Official Court Reporter
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. Flynn
P. 0. 7ox .144
')outhold, N— 711971
January 31 , 1990
�outilold Tom Board of Appeals
ToY,m Hall
Southold, ?. Y. 11971 t
--,Y :Nand
te; Port of 7ypt Application for Variances
I have been informed by what I believe to be a reliable source that the
subject applicant is scurrvin- about in a foredoomed attempt to
to revise his application by attempting to esablish single and seperate
oernership, regardless of beneficial interest, as a means of reducins the
total acreage purportedly in his o�•mership/control. 'le also appears
to be attempting to include underwaterl_and as part of his "?',uildable Land".
If this be the case, this transparent stratagem simply will not wash.
The applicant in his previous submissions to State and Ton agencies,
has claimed the total property to encompass seven (7) acres. in his
subsequent letter of ''ovember `?, 1989 to the Board, iZe has revised this
area downixrard, for' obvious masons, to 216,053 sq. ft. , or 4.96 acres.
Clearly, all of- the agencies concerned would then be rgisinforaed as to the
size of the property and the impact of a project of the proposed size and
scope , along with its collateral uses, on an area reduced 30", in size. in
addition, public hearings were held on an application which 'lien must
be held moot.
Further, these hearin:rns elicited none of the le.,:,-,,al proof required of
an applicant seeking relief by means of variances. '.!ere such alleged proof
to be proffered,fered, the Public, of course, crust be offered the opportunity
to scrutinize ,_ind quesion it.
In short, any action by the 1,3oard on such a revised application would
be iller, 1. Any such revision would require a reinitiation of the
application process and the submission of incontravertible proof in
support of tine revised application.
If, in further defiance of the application process, and concurrent with
with such revision, the applicant were to attempt to introduce additional
parking spaces on the northerly side of 7oute 25, such an action would
only serve to further impeach the subject application. The property plan
submitted by the applicant provided for the 145 parkin; spaces tibQ-, vh,,I.
contrary to Code requirements, he c,eei,ied arbitrarily to be sufficient for
the enlarged marina's use. Even this planniri. incorporates some spaces
which encroach or. State land and some 1:4ith setbacks of only 2 to 5 feet.
Not only does this represent, an outrageous reduction of 241 spaces from
the 386 spaces required by the Code, but no provision for additional spaces
was incorporated in the plan submittted. 7ven were the provision of
the required additional parkin; spaces posible (which is not the case)
such planning would be required as part of the application submited and
A
would precipitate unanswered quetions of ).health, saety and welfare over
and above those raised by the oriainal application.
Even ;were a new application submitted, the applicant's property on the
northerly side of Route 25 is not sufficient in area to sake up for the
shortfall of 2111 parking spaces. A revised application i ncorporatinm
i
this additional area :could still laolk 155 spaces, or an area of 1 .25 acres.
Tot only would this .revisionist tactic entail submittinT an entirelv
new application to the SECRA process, and the attendant public review,
but he property is, and would be, nonconforming; in either its present
or proposed state. Proof of this contention will be presented infra.
Further, such a revised scheme would have no appreciable effect on reducin
its monstrous demands.
It is the transparent intent of the applicant to reduce the seven acres
stated in his application as bein,; in his owwnership/control by the
240,000 sq. ft. that the Code requires for a motel site. Toward that sand
tide now proposes to reduce the area claimed to be in his ownership/
control to 216,05) sq. ft. , or 4.96 acres. This upland area calculation
was purportedly made by Iran Tu.yl Surveyors, but an explanation of the
areas included, or excluded, is lackin;.,.
(2)
`:rnile I don't concede the legality of such a reduction in land area,
particularly in view of mar above comments and previously exnreesed objections
tto the Board, and my own calculations indicate a smaller Parcel,
I shall utilize the applicant's revised land area calculation solely for
the purpose of demonstratinS that even a reduction in claimed Area still
.results in unconscionable overimprovement and intensity of use.
AS for the statement that the "actual area of each buildins was also
calculated and the total is 66,49`; sq. ft. , it is an obvious distortion
of the facts, intended to confuse, but easily impeached. '?o enumeration
of the buildings included was provided. If this calculation was actually
made by 1'r. Van Tuyl, it is probable that he was only asked to compute
the areas of certain selected buildings.
'Nhile the applicant's referenced letter is not specific in this reTard,
it can be presumed that the 66, 498 sq. ft. figure refers to the total
square footage of the completed proposed project. If it refers to e_cistin:;
buildings, it only serves to buttress my arguments.
To demolish the applicant's contention, it is obvious that only the rhajor
structures( existing and planned) excede in area that contended by the 4ii,.<<>:
This is demonstrable as follows:
Existing 1-Lin ?'farina P�uilding 271 9't5 sq. ft.
Existing Concrete Slab 57910
Proposed 14ain `'farina 1?uliding 28,210
Proposed Concrete Slab 3,219
Total (Main BuildinCs Only) 56,86, sq. -ft.
Excluded from the applicant's buildinm caculations, and for cbVious reasons,
is the restaurant -,tructure and the 910,000 sq. ft. parcel tale Code requires
for this Use. ':'ere this USe included, as it must be, the area available
for marina use is reduced to 136,055 sq. ft. of upland.
Completely excluded in the applicant's revised submission are all the other -
bvel,1141S including; t'^_ose to be retained in whole, orin part.
n
To anyone interested in objective and impartial analysis, the above should serve
as an object lesson in not taking applicant's statements at face value.
(3)
it should be a?parent immediately ythat the subject groperty is
nonconforr�ni n�T at present, and that the proposed expansion would compound
and exacerbate the de;ree of nonconformity.
At present there are at least three distict uses on 4;hat t.ne )pplicant
submits as a revised :property al-,ea of '1 J,`1 � sq. �'t. Th-3 are* marina,
restaurant and gift shop. The Code rnauir:'s ')0,000 sr".. f t. for each such
use, or a total of 2«0,000 sq. ft. 7inc� tLe .ot�l area is claimned
to be 2 i6 O :t fit- �r� wtl1, n� n l area �3 042 so. ft.
5 sq. . , h-'. is c t.t. -. ;t._1 i nc n land _3_ __� of , ,
or 0.55 acres. In addition the existing buildinvs are noncconformin7 with
respect to covera;e, setbac':<s etc. In point of fact, one building; even
encroaches on :J Late land.
The bull-, requirem..'ents `.•Tith respect to plot si es could: be niet by eliminating
one use and, in fact, it is proposed to eliminate the gift shop in
the expansion project. This would, however, have no effect on tile
nonconformin7 status of the retained structures. The property would
then then be --made conforming only with respect to requi rect plot sizes
for marina and restaurant use. However, sufficient land area is
available and 30,000 sa. ft. therof must be allocated for restaurant use.
This leaves only 136,053 sq. ft. of even the revised overall area
available for rnar_i.na use.
The existing deficiency :with respect to bulk area requirements is
demonstrable.
Total land area available 136,05 sa.
Land requirement for exi stingy; bidzs.
(46135 / .30) 1_;37Q50 Sc. ft.
Deficiency in land area based', on bld�_!. covera e � 17,2.92 sq. f t.�
(continued)
(4)
Code Pulls Requi:'eTTients for Exi stingy Bull:ti n,-
Existin nuilclin<�s 45, 135 so. ft.
Par'_-:ing ()2,250 sq. if
Landscaping 2, 109 sq. ft.
Total Land Requirement 16c),544 sq. ft.
Required land area 150,-D44 sa. F`
Available land area 1367052 sq. ft.
Land deficiency as presently iimProved 2 41 M so. ft.
Even were the proposed d-nolition of some of the structures factored
in,and excluding" new construction, re-minim existin` structures „could
still excede the oeri fitted CO,.rerac-te for th(- L-Anci -vailable to theni as
follows:
Total land available 136,052 So. Lt.
Land reauirement for e.:istin^ blcl s (1127`5 / .30)
(reflecting deinl. ) 1';?_,ID 17 sq. ft. )
-Deficiency in land ar-a rased on bld ;. covera e 6,559 sq. ft. )
Code Bull{ Requirements for ,xistin:, Ruildincxs (refecti n ,)ronosed deml. )
Existing bldgs. refl. deinl. 42,783 sq. ft.
Par'cing 79, 100 sq. ft.
Landscaping 3 0,471 sq. f t.
Total Land 1?equireiiient 152,354 se, ft.
Required laand area. 152,3 L4 sq f t.
A Availa _e land al-Pa 1115,058
8 sc. ft;.
Land daf i cienc, (,ref l.ectin: )roposed deml. ) 116,296 sq. ft.
:)rdinaril`f, were it not for the purpose of creatin a record., it T;70uld
seem superfluous to quote fro.-Ti the TO.m Co:ie with r-spect to non-
r T the r i n t + p t
confor�iin;; us.�cs. .rider he c,i_ cai;istanc- s,I would l.i,<,e to call to the ..3oard
attention the 1ollowinr sections of the Code:
i
(5)
Section 1 C. 1
I I TI-7'M 7.711 :Z.UILD ned)
. ,�
A in.71 or siructure le!7ally existi n, on th
of chaot''r or any applicable
amend ^ent th-2reto iich
fails, b-, reason of such adoption, revision or amen'rm t,
I�,o Conform to 'he presiont district rer-7ulatins f
-or any prescrihed
structure or, bui lal in such as front, Side or, rear
1 -, ,y n�l
yards,buildin!-. a
areas or lot coverne, L -r'
per unit, dwellincr units filerbuildim-,nurliber ofm'
and s-naces,e_tc but laich is continuously rqqji-ft
after '-h-e effective (Jato •:)L L,'lose re,(�,ulatioris.!, ( --Mllasis 'quonlied)
S00'40n 100 nurpose
"T"le, ),'Irnosc 0-1 L_LD A: L,
is '0 ro duc2 or rfdnJ;-Jz i,nr)acts
of uses and ,-ihi crj (-!,-) -lot
conform to Une use or 'hu.11'
rrauireio,ents set �'()Pth in t"is Chanter, all uses that come
nonconformin;, by rr_,ason of any subsequent amendment to this
01"ant,er ,ncl -s containin- noriconf ormin-, uses.11
(177,"Mil-ASIS SUD-o'lied)
'To '0 " 1411�L,) C on-�'-)�d n uz-,es.
Section 10-0-.--. .042 A-__ 'IleY
_ iforriin:�: buildin",S
,Tothinn in this 1rticie ,3jj;jjj *0-? cle_j-eI re ent
re-iiodelinr-, _'_construction or enli- r:rerim' of nonconfon
buildin(- containin -, a conformin:-, us
e, t'_iat such action
does not (,re ate anv ne.! nonconfor:,ianc, or i?-icr:,ase the dlep'ree
of noncon'nr-nance with ner"arfj ','.0 'G'I reula.tions pertair—iin- -'-,o
L
SUCK—bu 11 dl in+7 s. (ermpnasis sun,-olli e
On t-he basis of 1-1he 1--'Dove abstacts t'-01'1 CCVR�,11-)Oth 'b110 ffj..�ta if
and 'If,7-niritll of the Co;Ie denial of those varic-Inces.
Ine true riamnitude of ir."he "variances" sought by the applicant - aside
from diminished setbacks .- is revealed by 'Lli-le follo,,-iin7r, computations:
otal land available Coased on applicant•"s revision) sq.
Land requirerient for prono-,Sed bld;_�;s.
247,"�sq
1 U.
efic n iami area basec, on
'lote, l-,12at ,,;tIo , ()ov(3 on t 1e a-m)licant?s downwaw"i
ement in Inis m..,nership/conLrol, ').nd riot on the s.-ven (17)
acre arse St-ated in his ,ulomissions to St,"--te and To,,,!n a--:rencies.
%
,- in, based Oil {_•il:? applic%ant's 'arbitrary reducti011 i:1 .�"�10'_iSl?7 :submitted
land ,area, the _fcllo�a.in:, deficiency is (-[e,ions L-Ged:
Code Bulic 7eauirements for Proposed )uildin-°s (ref lecti n-, deml. )
'Or OpOSed btzil:'?in`,S 71; ,27=) sn f t.
Larkin; 135, 10r? sq. ft.
Landsca yin.
"otal L nd rec_uirenent 261 19 ft
P,equired land :area 2i1 ,719 sq. f t.
Availablce land area ('lased on aoplicant's revised area) 136,05 so. ft.
Land dcf iciency
"_'''le above analy;iS reveals t?'Iat ti'le a"Dlic3nL's :1,ttemot to riot [li S
application in a more f 3vorable i1';flt �'.I 'r' i.uCi;1� ?e land area he
claiills to be in his ot•,-nershin/confrol `!ar_es no appreciable difference
'_n the enormity of his demand. A� i�r`?v7.OLlsly Sub):)li.tted 'le ?dOuld i'lav<
required 3,u additional acres t0 �lith Coe-le r', qui reC;l=ems for his
:+Y'oj ct- Fiss m llnati on.S have rt ''Iu&-,-i-d 1•1aiS to 12 aCr'?S.
An ...Ta.J this ':Jrn j?Ci S i a e 7
elf , i r_7ui ,Cs ? ,,O i _j acres rr� than
he o?,ms for `hi_, pro je. c t. to COIIlOi Y with the Code's bulk, 7 ram; '
7 s ul: rec uir,,:�len�s.
even on a revised land area basis the applicant ?could require twice
the area 'lie o-:ms to Comply with e Code
mO lUt t'liS a.J�lic ltiOn l.:lt0 '?Prcpontl,,T", i the '3Oard ?lPrF' t0 rant
these "variances" it t rou !j, : m0 n'' a'r (,—ri=3.i.ions f ro'.7 COA0 reQuirer„tints,
rl. l e the a''p'_icant -1 ,7_ft Of the utility of ?r' r�'-nC? �;e value
7 - of sO:l?e
three ( ) ?.CY'n: O: Fi ?Y'r'.^Opt co,.,hr'cial !_-I-nd.
I{ _•:DOS4I ` O Cl<-',lonstrate t`1e tr".isw- tint E ti o
C Llr'aClc'S o_ '?
applicant'.) calculations, and the invalidity of his contentions,
Slithease. '7verl if One were to i;;!oY'e the m-. ni fest requirements Of the
A
Code, and treat tale ^rorerty as a sirlPle property of 216,05�11, sq.,.
(i zorin� the Code requ.irFe:rAnt to allocate 00,000 seq. ft. to the rest_iur it)
the project would still ?)e nonconformin- ,dth r(�snect to Code
rreguirements for bell;;, let alone setbacks etc. It �-rould also be
defir-cient 1 .5 acres in land area. (7)
A
iotal lal-,d availalble(per applicant)
0 sn. L
Land reqiremients 2 7
- 1/ c,�
(incl. restaurant)
Deficiency in land area based on U
covera,cre Sq.
Code 7�eciuire--Ient.s .,Por Fr000sed Ruildinr-,s (incl. o,
Fro-,Dos-ld buildin(7s n 7 nso.
Parkin (1 '0 1350)
I 4-� rcjf)
T dscaiDl
Total land reqUit-eren' 125 ft.
lt,iqui,---J, lanc`, lillf3li 12 5
Available .-rea
Land lacy f31cielICY I I G.
GI t-rom the above analysis, v-n if (contrary o (:ol,e
requirements t11applicant - -latG-
1
ons ar con5i(teredl he
iToul,I still I-,- -nlonconf=�-in!E a�, d dlefic`;cnl- 11 .7) alcrp.s in I--)n(U are?..
'mother aspect of `hi- -,)-,)l-'caIi,- 8 P"'C( we(l sca-iL ',U-
!,i
but it is on;' is a 1)asis Por rnandz�,.tory re-i-etion. This is th-e
obvious Se�r.mentation of the property.
The Propertir Plan submitted analyzes the easterly ')2,4 0 sq. I rt. of
j - " I
the property as if it exists in a vacuum, unconnected to 'he rest of
i-Ihe niarina oo.�crat-ion. 7%, lai.i. -)lann-i,.-, must enconnass tli-,-o ertir---.`-v.
I
Tne applicant disre,-arrls t'.a e t e r r eJ 4 0-
131,rjjiD C)II tln e entiretv a--ricl bases
plannin,-, ul', cove-.--,a�-e e,IC. on the
arbitrary assu!:mticti is, vacan"L. land', une-'fpcted Cv existi-n-,
arina opei,:-AtlLot-i.
o_oUldin- coinloul-.�Aons
Llrr�a i3 unrleps�a�—(-I, t1ho �:-Ira
ic-liore the otil-her bui-Ildinr— and, 1.)avetiiem',-. on the site, end Curu-"Ifar
,op t inin�� !,I� include —til i oronerl-y in�-ludin-r- its
its draiiiac,-,-�. ith rc.stw c t dr,, nara, cont
"y to
U-I')
T`s ®zero runoff" requi men s, the glen submitted indicates ]Rain e pipes
ditcher 2 into the basil.
An anaysis of the proposed, arbitrarily severed eastern "site area'
reveals 'C.h e i lloxir3:
Io al land available (pro,)osed site G2/GO sq. ft.
Lan-1 r§a±rem t {or proposed §Ig- (incl. ta eE)
]2S,G50 sq., ft'.
Deficiency in lend arm based on lbldg. en era R /7,630 sq. ft.
§e112 ReQuime nt= or n]4 . 2ose4 Site (refl. tailed
Proposed CId3s (incl. re\aine g5,0 V so. ft.
Ear i ( ]30 2 /50) SG,000 sq. ft.
ndseaging 2?1005
2oial lad req imn.eB% I15,02/ so. £t.
§eqi ed land area ] ]5.02/ so. £t,
ailible L±nd are O2/SO aq. ft.
Land deficiency . /2,5gj sq. £t.
By severing and Sew ienti23 the property, the applicant has effectively
: painted himself into a corner, as Gle follm n ara2zs is indicates:
tal land area 1-6,050 sq. £t
Proposed land area easterly sef yt Site (2/3O sq. ft.
Land area. available for e=ist±3 rina 3/,G28 s. ft.
(cantin )
\ (9)
L_nnd. ar^a for existin-, ri,,arl ina.
L t
T 7 0 7 7 17,and requirai,�,nt r',,- s.
Ciciency Lin 1--nd 71rea haled on bld-. 75�.c),Je Bulk T'equlir,,i.ent,S 7X_J t7n-7 :1-
-Pt.77
arkin-, (2;),) 31.50) 13,� Ct
Laf.dScar)i njo, T�C) 'PiL.
5 4 046 sr.j. f
Ott'. lard reau-i ( e,ien'
0
Avail..-ble lanri ar.-�.,,-,
T,a S 0, f t 2- A-3
., ,.nd dafic-iencv.
"of rxn1v has the a-m)licant p -(-1 4
-Lrl,properly 1by a-t-bitrarily cipl)ortionin.:�
4 A'r
and ser-ientinn, the p-oor)ertw, YIt hi -ict J on on'!y sarve to underscore
t s
E,he der�r-_e of n--on.r o r--q i t P: . eefr )u, a, e th ml , theorrni t,.
Of t*he "Oul!{ variances
The bulk covera.-,e Soutl.hit on the severec-1 e13terjy .7ould 1b.-
L I,
14&IJ of that ne'rmitted b-y the Code. The arbitrary se-imientatio7i of '-'-ie
westerly, existi-,m=--iatarina site would be 241'_ of Code requirements.
The land deficiencies, so computed, �-;oulcl be 0.'- acres for ��asterlv
pronoed SiLe and 2.6 _crs. .,)r ie u sum.
4
Uotal of land d-_-1'1CC1,_ncv 011 4-
_S ',-,T()Ulrr
4 C, --
A Seals t1-:1t
7 as co!rioutle.d c,
ice( n T e,I e. s.t
owned !;otuto,t i land in --iis rsi,10
::1-_1` 7-Or
L, J Ls dkisin,-,�enuos statemczlt re-:1(i
T., a t ',i e r is o r e d e c, o r s i,i t i
n rwa,tie, I y I s� land
t 4
o (110(','_..<��!.,',-_,. i.-3 hi s -_:;�)-paren j t,
itent ion
'D I.'s(3 t' s a a:-) a PIU! to increase t�,o araa oi' ',is 117ujl' .Fble
L
9�
Such 1:1 �C11LY"F;, 1= _)rosented, would constitute m ndbOrMlin:c- r r n` ��' r
i f_ro- t,�•- y .
7t iS aS if anCTiYi(" l'`_'1:J 1^0,'`'n0 :�. ft. Of r•,iaLerlY'GY1L proper' y, ;ir edC-cs
70,000 sq. ft. Of it, and claim's ii,,� can use the remaining 30,000 sq.
of il-m and to build a jn,'-000 sn f t. build inJ. He would thus to usin the under',Ta
/G«.< created for o th'.nr n1-rposes as, the basis for !'rieetin�T bul l< "71.1ildable
Land" heauir-�;'ients of t:L - Code.
The audacit�,J of this contention is l an ar, t
who has dred_;ed Such _ basin; it- for co':,nercial and
then proposes to use the ar.:a second. ti;Ilc as the asi-_. =C1' m etin; the Cc
Land" requirements.
Ortunate l v i CI^ r'O'llh c 'i'Side_ t S ahg Toy C r e :, 1 i^;r r
this resard.
Section 100 - 1; Buildable Land (defined)
n
t `'[ice net •1r:;9. O{' ,. 1.Ot; Or , �tl^C:Pl ;=.ftC.r C��,.a't.1Cf;•1i1': it'_%3' �,
St re_1!ns, bonds, slopes over Over fifteen n-,rccnt
de t r l 17•.., (s. SGI '.7,S or Ot,_1 r Y. • ions _ 8 n n";
`ln T�t,i. n a r7 p , ny.. +- 1-1 � .,ter.'`r n-t nr c� p. i
use Oi' :3Uc' ailr i for c0:.,'1 tu^tion of t; . 1 r p I
7.1 1n=;S ...orn C't e r ti Oi�Ti le_nt.
tempiias,iS suppli-ed. )
i need hardly point cut. that. t'-Pe !� i � '-nr e nr r tii of t'ni S
TGi•n ?s n�o:. 1 t!�' G�i._ Gns
SC'Ct LU11 Gf the•Code on nui1,erous past occasions to prevent t o. LiSe of
such land in yield or density calculations.
Section 100 - P iq of the Town Code is also a propCS and I quote, in part:
Foi' "he pLirpose of CO'i1pUtin,.: (R-risity for the :?3ve1.Opment
Of any lot Or 1.OU,, no 1_-_rl;� llthCler 1t,?, , Link'.sS flllad i�UrSU?nt
C iF.4`l, s`1a11 1)'e includc(ioc'lpiltill.; tht? ini'1UII1 lot area
�Or eac_] dt iel l i_t i=' Unit -,,, riitted under -11)n -i
di:i ;r='_^t iY1 ':i;liC'n ': ni-o)erty 1.i C,-a if
tilt? 'tii•. i� Le%' Cf 1,i7't 2'E7Ci i ' ,;pl_1'it i)1 :?;: J:.c! I)r''CSCrI :)? L1S1Ih
af, ..._'"_i Cl lr.'.Ll.__1:.1 i l'il':. Un'1-1c,-r(1:=:t(3i' 1 r i t%l� �- S4 ` v o• i
_?:"1C ?:i 'l.�l.,_;� _O_ C !1 •Llt Y.�;
cr p�t!(e p!I sA
i i . l'� T '1�:' i l'J e e cne
S W:� '.)Y'O)!.i i ." st O t2' _�f'OU;i_J pY e..SLIY?ii)tL10U. ] ha ,e i7
in t,`le Cc'li-.se w .rap- ;.%ea-s of anal %,_t7^, such 1)rojects. It coillplet :ly
( 11 )
1 _.-norh he pr0`:'._'nions of the Southold Town 40Y11."1'' �.v�jC?Co
.a O and ... `:S variance
av�-,.?
On tap of iriance in .n attempt to Comol etely nullify Code raqu r,r.
1-_ E_ .Ients
with respect to density and intcensity of use, setback reQ irm nts
well as health, safety and welfare and environmental considerations.
in short, it is absolutely voracious in its demands.
s'u-irCar , L sUUI-rit the Board cannot grant the variances sou ; c
or
for the following reasons:
4) -i•1'e Zrant_n" W varianons is, y law, ,o he sparingly exercised
_`1
rare circumstances.
1/ Financial hardship ", t ical f. c ' 1
_ :C �:i:fit circumstances
?;?1_1SL be ?prOV:3E'l bY t'.'1C c,7:p11C<Irit. Ae Vs .".Ot, ;iG'.,ernpteci to p'.^Ob':?, nor coul
d
[1e prove, either. `1'o prove hardship he would have to _prove the property
is valueless without the variances sought. Some chance! Any c l ai:1
of unique circumstances/practical difficulties
. _ is easily count3rN
as being the results of lis own actions in developing the property.
C) Any attept to r3vise at this late date, e land area encalpassed
by the application, or any any attempt at revision in cludi_n'`',' _. Je a Q
submission of purported° d proof, would require a complete reapplication to
all 'a_ encies involved and a subsequent public hearing a :i_"?igh the public 1
_ _ could
challenge the revised data.
D) The "variances" sought are of such a magnitude as to e:xcede the purview
of the board. :'Mile the 9o:3rd is enj.po`,•)ered to iiiodif y the strict letter of the
law, this application ic. t ion l okes a mockery ry of the
la T L
-- �- _ _".'1 Fl.Cir�ll,lOn, the I,OCte
enjoins the Board to observe the "spirit" of the Zoning Code. Nothin >>
could violate the spirit Of t .Cole Oi'3 than he e appl -
i -'?-e Veyative impact Declaration uhic'1 precipitated t''l;'se hearin,
as i 3sued t.`1_✓1jlpL.-., the "hard look" and "reasoned explanation" required
c.q `d
i'
law.by w• .•.J .:0. .J1C..3rC.t.i-
_Un :'_1aL.:JJ:p'✓s'r?;?%?s given ,o the manifest health,
safety, V21 fa rC and environmental problems that the '"r'a_,nitude of this
?lppl icatian woul.l certainly precipitate.
12)
F) The subject property is nonconf orrylin in its present state and would
�1-4 become all the !pore unconscionably more so were the "variances"
granted. The Town Code states that its purpose is to "reduce or minimize
impacts of uses and buildin"s %;rich do not conform to the use or bulls
requirements set forth in this chapter (.,onin ) . It roes on to enjoin actions whi
"create any new nonconformance or increase the de,-Tree of nonconformance.
What is a.ctuall sou.-,ht here is t'.e complete abandonment of the newly
adopted Zonin,,; Code and 'lister Plan.
G) Granting these variances is tantamount to making the applicant a -ift
of the utility of, and, consequently, the value of some 3.5 acres of
corl].rlercial waterfront land. ; is enrichment would be at ti.e expense of
the ordinary residents of the Ton and of their welfare and environment.
il) Any attempt by the applicant to incorporate wetlands or underwater land
as Buildable Land is a clear violation of the Tom Coda.
In view of the statements irnnediatel above, and elsewhere in this letter, it is
incomprehensible to me, and to other resi.derits of the To.'m, that the
Board has temporized about this r^atter to the extent of holdin_.; four
public hearings and permittin the applicant to introduce statements
A
and data clearly at variance '.7i th his ori.'inal appli ction on .file with
the various a encies, State and Town, involved.
In conclusion, I :submit that should the board grant these variances,
and ajudication become necessary, the 9oard's action would "shod:
the conscicnc " of any court.
_ . Flynn
cc: rt'O'.1n :�t`,torney
1 SOUTHOLD TOWN ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK STATE OF NEW YORK
2 -------------------------------------------X
.3 SOUTHOLD TOWN ZONING BOARD' OF APPEALS
4 PUBLIC HEARING, in the matter of
Appl . No.
ROBERT OCHSENREITER 3908
5 and
EDWARD LENCESKI ,
6
Applicants.
7
-------------------------------------------X
8
Main Road, Route 25
9 Southold, New York 11971
10 February 1, 1990
8 : 15 P.M.
11
12 B E F O R E
13 GERARD P. -GOEHRINGER,
14 Chairman.
15
A P P E A R A N C E S
16
ANTHONY TOHILL, ESQ.
0
17 Attorney for Prop.ert,'`,Owners
4 12 First Street
18 Riverhead, New York 11901
s
19
Z
m
20 BOARD MEMBERS:
SERGE DOYEN, JR.
21 CHARLES GRIGONIS, JR.
W JOSEPH H. SAWICKI ,
a . .
22 JAMES DINIZIO, JR.
23
24
'i 25
1
2 .
2 THE CHAIRMAN: The next appeai , and
3 I will .read• the legal notice before we take
4 any testimony:
5 Robert Ochsenreiter and Edward
6 Lenceski , Appeal Number 3908; and the legal
7 notice recieved upon Appl . 3908 . Variance
s for reversal of building permit to construct
9 a one family dwelling. Property location:
10 565 Bayer Road, Mattituck, County Tax Map
11 Number 1000 , Section 139, Block. 3, Lot 14.
12 The applicants have provided me with
13 a survey,. which is from Robert Van Tuy.l ,
14 P.C. I don't see a date on it . Yes , I do.
15 March 30 , '1972 . The nature of this appli-
16 cation is for the existing building permits
0
17 on the house as partially constructed' on
is Bayer Road in Mattituck. It is on 'a 50 by
is 150 foot lot. I have a copy of the "Suffolk
20 County Tax Map indicating this and surround-
o
21 ing properties in the area.
W
22 Is there anyone that would like to be
23 heard?
24 MR, TOHILL: , I am an• attotney repre-
25 senting the property owner. I intend this
1 3 .
2 evening ,to make a r'i,sees 'of applications to
3.., the.-Board,,chall•enging' the abi 1 ity :of;:the
4 = Board .,t'o, hear the`•appl iaation for Juri.sdic-
5 ti;oria1 reasons, and :I :�am. wondering,. in: terms
6, -of ..housekeeping;. how :.you 'would 1i.k' to
proceed?' :Would-you want me to do ihat''_
$ first?:... Would you want to 'hear from:-the`
9 objecting p"et .t;i on'ers ,.first? . I. would like,
10 :for: reasons that hopeful.l y.'never become,
11 apparent in this•. room; "not to : r6ach' the`'
12 " merits= of . this' matter •tonight .
i3 : '. .THE ..CHAIRMAN: • That ..i.s the .reas on-":why
14 I' called. on' y,ou first, 'Mr'.. -Toni 11 : Let he
1'5 ask who is .repre9er ting the... two applicants, ,.
16 and. see how that counsel .feels if. .counsel. is .
1T a "representing� Mr:: -Ochsen'reiter: ..
Are you represented by 'counsel?. ,'_
19 -MR. OCHSENREITER: We,are not..
20 THE' CHAIRMAN,: :Would you:. like: to, hear
21 your case. first since. you nave ;brought this
22 application before us?
23 MR. ' OCHSENREITER: Yes'.
24Y MR.' .TOHILL: Am .I•-.correct In, saying.,
25 ; you are--reserving my -right to challenge ,the
2 jurisdic,tiona1- :questions :without, r'eaching::
3 the..me;r'i ts?
4 THE .CHAIRMAN:., -I.'would .say yes .
5 MR'...,- TOHI.LL: 'Thank. you.
6 MR.:, .00HSENREL.TER; My name.•is Robert
Ochsenreit6r.. .. I 'live, at _600. Bay Road, in. .
8. ck, .:and .I am one .'of°-the signatories
Mattitu
9 of ,the, petition that is' before the Board':
10 I think the .merits", las., far as we are
11 -concerned,•, area;contained in this . I would
12 r 'like to say, we'` feel it; is we "who suffer a '
13 ..'. ' : financial loss',-'to the reduction of property
14 ;values,,b.y having a 'rat.h`e•r " large ,house ." n•.a,
15 rathe.r.' small _ Tot constructed directly across
16 from us
o THE CHAIRMAN: Can• I a.sk you just a
17.
18 couple".of gizestxons, ,.Mr.. 'O.chsenreitee?
MR. 'OCHSENREITER:. Yes ..
19 " '
_ THE CHAIRMAN:: There -appears to be �a-
m 20'
time, period.-between .the actual,-incept"ion of. .
the start , of this `particular premises and
22. :• r.;
23 'the`'time that.. you have,'brought `this'.
;
24'
application 'before us I ,will 'be, honest
25 with, you: I.;observed .that._ there; was `a ;
k
1 5
2 period of time that just the existing
3 foundation was placed in the ground and
4 stayed there fora period of time before' the
. 5 actual construction commenced.
6 Is there any particular reason why
m
you waited until they actually started the
8 wood framing of the house?
g MR. OCHSENREITER.: I contacted Mr.
10 Ross of Wickhkam, Wickham and Bressler
11 in . . . . I believe it was October. I cannot
12 be sure of the date. He did contact Mr.
13 Schondebare concerning it. I left it in his
14
hands until the above-ground construction
15 started on January 15, which was a holiday.
16 THE CHAIRMAN: You want to say for
0
17 the record Mr. Schondebare was not . . . I
0
0
18 don' t know if he was the attorney at the
19 actual start of that construction. What was
20 the date of your letter?
0
21 MR. OCHSENREITER: December 11, 1989.
22 THE CHAIRMAN: He was the attorney at
23 that particular time. Could I have a copy
24 of that letter?
\� 25 MR.- OCHSENREITER: Sure.
i
1 6
2 THE CHAIRMAN ":�, I think I may .have one
s in'the',fil,e.
4; MR.. OCHSENREITER This, i's, the only.
b c.ppy, I . have::
g' THE CHAIRMAN We wi�l l :return it to
7, you ;
the time: that 'the* wood fraining'
s constr.ucton,:.actually started, it was
10 approximately the dime that you started. with
i1 ',this , particular application or :commenced.
12 this' application
13; MR.`:OCHSENREITER: We had commenced '
14. prior, to �tbat I .believe .in October, .but: 'I
cannot be sure.' of the. date.., I, believe-.' the
15
16 original. -_letter to Mr. ".Schondebare -was' dated
.; 17 in` October, from 'Mr.. Ross ." .
18,' THE CHAIRMAN: ,'`Was` there at. any .time
i9. that., y0u,'fe1t.,.there might `have been a,: stop '
o work' order'. on 'this particular 'property?
< 20'.
s : 21. MR OCHSENREITER': I do'n' t ,know:.
r , I. don' t know'.
22 -From :my'-4i ect kn'ow1edge
23 THE CHAIRMAN: I 'thank.,-you. very.'much.
.24 .;' We ' wi 11. see what develops .
25 Y.
1 7
2 MR. TOHILL: Could you ask Mr.
3 Ochsenreiter whether or not he ever went to
4 see the 'Building ' Inspector, or Mr.- Lenceski?
5 THE CHAIRMAN: I think I will ask him
6 at the end of the hearing.
7 MR. TOHILL:- Can I ask him?
g THE CHAIRMAN: You can ask me to ask
9 him.
10 MR. TOHILL: Please. I would like
11 you to now.
12 THE CHAIRMAN: Mr. Ochsenreiter and
13 . .Mr. Lenceski , at any time did you go to the
14 Building Inspector and request a stop work
15 order on this permit?
16 MR. OCHSENREITER: No, I did not .
v
F 17 MR. TOHILL: Thank you.
0
18 Mr. Chairman and members of the
19 Board, I would like to make an application
m
20 which has three subparts; two of them are a
a
21 little bit lengthy and one is quite brief .
22
The first subpart is that the Board
23 is .without jurisdiction because the
24 petitioners have failed to comply with
25 Section 267 , Sub 2 of the Town Law. In
Z-
8
2 substance, Section 267 , Sub 2 of the Town
3 Law says that when this Board acts on this
4 kind of application it does not have what is
5 called original- jurisdiction, but instead
6 only appellate jurisdiction.
m
7 What . that means, following up on the
8 concession of facts that was .just made by
9 the petitioners, is that the failure to go
10 to the Building Inspector and ask for a
11 determination, the same determination they
12 are asking from you tonight, means that the
13 first time that the Town of Southold is
14 being asked for that determination . . . the
15 original time is tonight. You have no
16 authority to do that. The reason is Section
0
17 267 , Sub 2 of the T.own, Law says your juris-
0
18 diction is appellate only on an application
s
19 of this type.
W
m
20 The Town zoning ordinance takes the
s 21 language exactly. It is the first
22 subsection of the four subparts that gives
23 you. jurisdiction to hear appeals , variance
24 interpretations, and matters of that type.
25 The' result of that. is that there is no
2 application before you "f.r.om .any .pri•or .order,
3 ""requirements-, decis bns, . or- determinations.
4 made 'by an administrative 'of ficial• charged
5 with -the' 'enf.orc.ement- of the zoning
6 ordinance
Inquiry ''of the Town Atto.rhey ' is.. not
8 inquiry. ,of that' official - who . . . had an
.9 administrative official in this � Town .been
10 appo`inted- under Section` 138 , 'the Black.
11 McKinney.'s Town --Law, with" the sole duty' of
12 enforcing the 'zoning ordinance absent
13 that .under the' decided cases. there i.s. mp
is jurisdiction: I.t, -is not in 'dispute 'and'
15' indeed .if you look in your file there is a
16 memo from the ,Buil'ding Inspector: to..You,
a
17
dated January: 26, j9.90 ,- in. which he. says he "
i8 has no 'knowledge of either .Mr. Ochsenre ter
A or Mr.' Lenceski . There is not any
20 in..'any -of the papers' that -were -
allegation.
s 21 fi,l'ed by .Daniel- Ross of Wickham, Wickham and
22 Bressler,. on, the 19th' of January, saying
23 that,- they- ever went- 'to the Building
24 I.nsp.pctor or to',:anybody in' .the Building
A ..
25 Department, even to.. .Kurt Horton (phonetic, '
1 '•10
2 , sp.e11ing) who issued the .buil:ding permit..
3 'There ' s ,a.`case decided' in New .York
4 entitled Hilbert against Hass.. It-As-from
5 1987 . It is the Reporter's Report, at
6 283 N.Y Supp,..' 2d ..4140 , and in that case the
Supreme Court of Suf f of k' County ruled`
s specificaTl.y. on exactly.' the same issue. , If
s there ,is , no prior determination from. the
10 Building Inspector,` you don' t have juris-
11 diction. The.. same issue was raised by the,
12 Second Department Appellate Division in the
13 case- repotted in" the New York Law Journal ,
14 on' 'June 13; 1989; six months.. The same
. 15 ,..resolution occurred. The law- has never been
16 changed on it . There is a reason
o
17 Right now; you are about to. hear;
18 whenever -you; reach the merits, and I .hope
o. .
i9 you don't,' but if you were you will ' hear the
~20 petitioner's -side of , the case. You will
a
m
3 e property owner.'s side of the case,.21 hear th
22 but we will actually we .are here almost
23 by our •p.leasure but you have nothing_ 'in, the
24 record. framing .the '.rebord: from the,' Building
25 Department
2 Just to point out to you how the.
3 order is written,in Section 267 of the Town
4 Law one of the things that could have
5 happened if, the right procedure was
6 followed, if they had bothered to go to the
m
7 Building Inspector, is that' he could have
8 issued a stop work order. The Building
9 Inspector could have revoked our building
10 permit . If that were to have happened,, Mr.
11 Ochsenreiter and his neighbor would be home
12 with Newsday tonight, and I would be here
13 with my clients . That is the way that the
14 statute was written and that is the way it
15 makes sense, but. to have the Building
Inspector excluded at every step from the
o,
16
g17 administrative procedure makes you the
0
4 18 Building Department . . It makes you the
0
19 Building Department . Now you get to fill in
20 all the gaps . You get to second guess him
g 21 and, again, if we ever reach the merits on
• o
this particular controversy . I don' t
22
23 think you will find any of the questions and
none of' the answers for certain written in
24
25
the zoning ordinance, putting everybody at a
12
2 disadvantage.. It puts ,-the Town'of Southold
3 at` a °°disadvantage: I;t puts' my .client., the
4 pxoperty owner, a`t..a A14
*advantage, , and it ,
-5, puts , you at::.a .brutal disadvantage.
s I .can 'right. the record in. this '
7 proceeding.:` :The `Bui l.ding' Lnsp;ector can.
8 remain - sil.entin this .proceeding..' Worse'
s. than, that; the petitioners could try to: .
10 right the 'record., Maybe . they know and maybe
11 they know. less The point is, . the oril y way
'12 in which this, is supposed to work, under
13 every decided. case,-that -I have been able 'to
14 1ind..since' .1967 in the State. of New 'York, is
15 that you first go to the Building Inspector.
16 He then makes an .order or determination.
f 17 Th'at':, is.' the exact language under 267, 'sub 2
18 of .the ,Town" Law, and then whoever. .is injured
19 or hurt or- claiming to be .a challenging
20 party gets' to .come here to the Zoning Board
o
21 of Appeals :
Historically, according to the
22
23 Special Town. Attorney who was _asked. to look
24 into .this- today, this Town has from time to .
25 time. 'read that ordinance differently'.`
1 13
2 Unfortunately, I did "not know that ever
3 before, but by the time this evening that I
4 was able to research the point that. Special
5 Town Attorney had left his office and the
6 volume, the text, the case that says you are
m
7 reading it . . . in other words, it is what is
8 called surplusage, and that is not in my
9 library but in the Supreme Court library. I
10 will dig it out and have it sent on to the
11 Town Attorney and Special Town Attorney.
12 THE CHAIRMAN: Special Counsel .
13 MR. TOHILL: , The point is that if you
14 have done it in a manner in the past that
15 the surplusage says, and under all the
16 decided cases it would be done differently,
F i7 this is not the wrong time :to start to do it
0
0
18 the way the decided cases dictate we should
s
19 do it. There is no record. That is the
20 problem.
0
21 For the Board tonight, the second
22 part of this application is that the
23 application is untimely as a matter, of law.
24 On my investigation, and I think everybody
25 is in agreement, also Section 267, Sub 3 of
1 14
2 ,' the' Town 5 Law requires that..:you ,Have,` local
3 rul es of .:procedure:.: You. do riot: You are .
4 not alone'in .that category. Many zoning
5 boards o"t Ier ' °.do',:n6t..,f,ol low .that rule and .
s they do not' have to'..
7. One: of .the rules- of procedures, if
s you did_ have' them, would be. how :.long after .
g the disagreement-' .of that' order- or the
10 determination from the Building Inspector
11 are you allowed to challenge 'him. Can you
12 wait forever. or..are you required to do it-.
13. within" 15'_days,, or 30 days, or - 45 days, , or
14. . 'whatever?• If you :h.ad .that. in ,your procedure
15 written, that would stand, but '-absent that
16' the 'rule is one, :of reasonableness ' and. 'there
17 are :three key , dates `in' the 'rules of .reas.,on
.18 ableness and there :are' loads' 'of eases which
s
19 I, have given to .the Town Attorney on the
0 20 point .
21 The .first .key date, is the.'',date.,of',-the
22 building permit;. The. second key., date ,is : the
23 date that the �prop'erty. owners who-,are
" petitioning,' objecting, . in challenging ought
24
25 to have known :when`work .was started; that. a
//.g'-
1 15
2 building permit had been issued. A building
3 permit could be issued here and nobody would
4 know. So in fairness to the objectants ,
5 they have to be given a chance to know. The
6 third key date is when they file the appli-
7 cation with this Board.
8 Let me go through some of the dates .
9 I don't think there is any disagreement
10 anywhere of any, of these dates . The
11 building permit is dated August 8, 1989.
12 The construction started with the excavation
13 of the foundation on August 30 , 1989 . The
14 foundation was installed on August 31 , 1989.
15 The subs and material men were ordered to do
16 the. work and entered into contract with the
o -
0
17 gentlemen;. with my clients, during the month
0
18 of December of 1989. We ordered the lumber
19 to be bailed and held, meaning •segregat'.ed
20 and 'prepared for delivery to us for the
m -
21 construction of the entire house off the
22 entire lumber list on January 5, 1990 .
23 The work resumed not on January 15, a
24 holiday, but instead we had heavy equipment
25 brought to the site on January 8, 1990 .
1 16
2 The date of mailing in your record on this
3 applicat,io' n by the petitioners, stamped by
4 the Mattituck Post Office, is January 9,
5 received by us January 10 . No petition was
6 f i 1 ed' ,as -the rules required ten days later.
7 Nothing was in the Zoning Board office for
s us to examine ten days later.
g The date of filing of the petition
10 that is before the Board tonight was January
11 19, a Friday . . . January 19, 1990 . On
12 January 19, 1990 , the condition of that
18 house is that it was completely framed out
14 and Saturday, January 20 , 1990 , before we
15 even knew any petition was ever filed . . . we
16 were never sent a copy of it by anybody . . .
f 17 I bought and paid for ours .to Judy Terry for
R
0
18 25 ,cents a sheet .
0
s
19 Before we ever knew the petition was
6
20 filed, the roof went on. The house for
m
21 everybody who has been by to see it . is
22 virtually complete. Two people have already
23 offered to purchase, two people from this
24 community. One hundred and sixty-four days
25 have lapsed between the date of the building
1 17
2 permit and the date the petition was filed.
3 In ,1973, the Supreme Court of the
4 State of New York, in the case entitled
5 Marone. versus Friere; 343 ,.N.Y. Supp. 2d 183,
6 ruled as a matter of law a delay by-
m
7 objectants , such as the objectants here
8 tonight, of 120 days is unreasonable. '
9 Going back to the first point I made,
10 if it is unreasonable as a matter of law
11 they may not proceed. • In the name of
12 fairness, the courts have said if you watch
13 the guy, and you watch him, and you watch
14 him, and then after he invests by entering
15 into contract or delivery of lumber or
16 whatever he is doing, and then make your
o
F 17 first move, the courts are not going to open
0
18 up the Zoning Board for that type of
19 procedure. That simply is not fair.
m
20 The same rule was upheld by the
3 21 Supreme Court, Suffolk County, July 29,
22 1988 . I am holding a copy of the decision
23 in my .hands . I have some familiarity. with
24 it . It involves the Town of Shelter Island.
25 I represent the people in the exact same
1 18
2 position; different clients , same legal
3 argument , same everything. And Justice
4 Luciano1. (phonetic spelling) said as a matter
5 of law you, waited . . . 120 days is too much.
6 Seeing the Town Attorney or seeing
7 Daniel' Ross, who has ,been their attorney
M'
g since 1986, doesn't help for curing anything
9 because Daniel Ross is not the officer
10 appointed under Section 138 of the New York
11 Town Law to enforce the zoning ordinance of
12 the building codes . In this municipality,
13 ' that person is seated in the second row, but
14 he is not being consulted by anybody on the
15 objectants' and petitioners' side and that
16 is what the record says tonight . That is
e
f 17 what the code record says and that is what
18 the live records say. So that my client has
19 then got to spend a lot of money . . . a lot
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20 of money while they waited.
o
21 THE CHAIRMAN: Is that the third
a
22 point you just . brought up?
23 MR. TOHILL: No. The third point is
24 that under Section 267 . 3, in order to
25 perfect jurisdiction before this Board,
1 19
2 among other things, for the same reason I
3 mentioned I have ad nauseum this evening,
4 they :have` to file the application with the
5 Building Inspector, meaning the petition
6 that you rec.ei�ved on January• 19. It says in
m
7. the Town Law, you read it, "Such •appeal
8 shall be taken within such time as shall be
9 prescribed by the Board of Appeals by
10 general filing --" , here it comes , "-- with
11 the officer with whom the appeal is taken. "
12 That gentleman, pointing to Victor Lessard,
13 by filing with the officer from whom the
14 appeal is taken.
15 By the way, there was no appeal
16 taken; was there? They forgot to talk to
17 him. Then they forgot to file with him. It
0
18 says •with the Board of Appeals , a notice of
's
19 appeal . So for the third reason, this was
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not done, and for the second reason, the
20
s 21 untimeliness , you don't necessarily need to
22 reach the third reason because the untimeli-
23 ness as a matter of law and this proceeding.
24 Now I . would like to be able to
25 reserve any other position that I wish to
1 20
2 take during this proceeding, until such
3 time -- and I .assume it is not tonight --
4 you would have -an opportunity to consult
5 with 'counsel to revi®w the law issues and
6 render' a.,.decision on these procedural
7 issues . I. think that would be a .sensible
8 way ;of; proceeding for -a number of .reasons .
9 One; a number of people will be
10 required to be present here tonight or then,
11 whatever. night we reach the merits . That
12 list is getting longer with every day of
13 investigation on my part of the people who I
14 will call . It will be not. only inconvenient
15 for a number of people to reach the merits
16 without an opportunity to rule- on these
0
17 prior "issues , but I have been practicing
0
18 zoning law for eighteen years here in the
19 five eastern towns and elsewhere on Long
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20 Island. I have been involved in some very
m
21 contentious proceedings .
22 I have been involved in .proceedings
23 where property owners have been hurt . I
24 have been involved in proceedings where
25 people have lost money. I have been
1 21
2 involved in proceedings where people have
3 lost government and, municipal positions . I
4 have been involved in matters where people's
5 . blood pressures reached the point that an
6 internist 's medication was not necessarily
the answer. I believe I am going to reach
8 all `of these points in "this proceeding
9 -before we are completed and I would like to
10 avoid ever.y ' single one of them.
11 If the matter is resolved on the
12 technical issues and if somebody wishes to
13 challenge, the Supreme Court is twenty miles
14 to the west . The same Supreme Court that
15 decided the case I am holding in my right
16 hand, on .July 29, 1988 , involving the same
0
17 issues in the adjacent township. I would
18 ask that be in which the Board is entitled
s'
19 to proceed and we see where we end up at
m
20 that point . Thank you.
21 THE CHAIRMAN: Mr. Ochsenreiter and
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22 Mr. Lenceski , of course it is at this
23 particular time 'I will ask you if you have
24 anything els.e you would like to say and then
25 we will then go into a short conference with
1 22
2 the present Town Attorney, Mr. Matthew
3 Kiernan, sitting right across from me, and
4 we will have two options at that p particular
5 time; either . to continue with the hearing or
6 to recess the hearing at this particular
7 point and .then take, the transcript, which
8 this lady is nicely putting together for us ,
9 and giving ,it to both counsel and to special
10 counsel and to deal with these particular
11 issues . that have arisen tonight based upon
12 what Mr. Tohiil has said.
13 So I will just ask you if you have
14 anything you would like to say for the
15 record? Yes , Mr. Lenceski .
16 MR. LENCESKI : Edward Lenceski , 500
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17 Bayer Road, Mattituck. I need a few of
18 those medications right now. I am very
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19 nervous . I am not a public speaker. We
20 talk about procedures . Mr. Tohill talks
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21 about procedures, about procedures we have
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22 here. Mr. Ochsenreiter and myself did have
23 counsel at one point in time. We do not
24 have. him any more, for a reason we really
25 are not sure of .
1 23
2 We are lay people that basically are
3 asking the Town of Southold . . . and here we
4 are talking about jurisdiction: Okay. We
5 have the Town Planning Board. We have the
6 Town. Zoning Board. We have a Town Building
7 Department . As far as. I am concerned, that
8 is all the Town of Southold. One may not
9 have jurisdiction. This is something, who
10 is jurisdictioning here? We are talking
11 about procedure, about our timeliness .
12 We were told by Mr. Ross ' office
13 that he spoke with Mr . Schondebare and Mr.
14 Schondebare, for some reason, seemed to push
15 this answer off . to somewhere. He put it at
16 a distance, not responding right away. We
E 17 were given the impression; back in November,
0
18 that the building was not going to be put up
o .
s
19 until the question of whether or not that
20 building permit was properly issued and the
21 vacant land CO's were properly . . .. were
22 answered. There is a question here of the
23 property owners , Eva and Leonard Spano (pho-
24 netic spelling) , owning Lot 35 . . . 35 and
25 36, in the .petition. There is a copy of
1 24
2 their deed that lists 35 and 36 as one .
3 parcel . My deed across the street lists my
4 lot, whatever, they have 58 and 59, as one
5 parcel .
6 We .questioned how can we go about
7 subdividing our land. I called the Town
g Planning' Board. I was told if you would
9 like to, subdivide your land you have to file
10 a petition to the Building Department asking
11 them is this - legal. The Building Department
12 wily deny 'this because of the fact they have
13 a one acre zoning ' in your M40 ; -or R40
14 region. At that point the next procedure I
15 understand is we . would have .to file an
16 appeal to the ZBA requesting a variance to
0
a
17 build or to subdivide our undersized plots .
LL 18 My question to the Town of Southold,
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19 and I don' t know who has jurisdiction, is
how was the lot across the street sub-
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20
21 divided? Was it done with proper procedure?
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22 Was a site plan filed and an application for
23 the subdivision, a legal subdivision, filed
24 with the Town?
25
1 25
2 THE CHAIRMAN: I have no idea. It
3 would not come before me, anyway.
4 MR. LENCESKI : Okay . This is our
5 question.
6 THE CHAIRMAN: What the procedure
7 would be?
8 MR. LENCESKI : We are looking at the
9 whole thing here in that those were two
10 separate lots, two separatly divided lots .
11 We understand - that there .are exceptions that
12 were mentioned, exceptions under 1966 codes
13 or prior to that there were certain sub-
14 division maps . We also had in the code, in
15 the ' 89 code . . . deleted Mattituck Heights
16 as an .exception. We wonder what . the
17 precedent is .
0
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18 On our street there is approximately
s
19 four or five additional situations, very
m
20 similar to the situation across the street,
0
21 where there is a house on a double or triple
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.22 building lot. In other words, the original
23 1938 subdivision, everybody subdivided.
24 There were little 50-foot frontage lots
25 where the area was developed by people,
1 26
2 developed and put two or three lots, put
3 their house on one or two and had the lot on
4 the side. There is a question of whether or
5 not. these. things merge. I don't think that' s
6 the point . The point here is was that Spano
7 deed , . . that CO says Lot 35 and 36 were
8 deeded for one family use. How did that get
s subdivided? If we breached protocol and
10 appealed to the wrong Board, this was at the
11 direction of. Dan. Ross. Unfortunately, now I
12 don' t know'=what the Town Board or what the
13 Zoning,.Board is :going to have to say about
14 this hearing. We ask you for advice.
15 Should we file 'to the Building Department?
16 At this point, the house is mostly.
0
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17 completed. You hate to see people build a
18 house like that, but I know if I 'were the
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19 builder and I had a building permit 'I would
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20 not go ahead and build to the procedure
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21 before that was . . . that building permit was
22 properly issued.
23 There is also a question, if it was
24 properly issued, does that house size exceed
25. the Town zoning law under ' 66 regulations?
1 27
2 It seems the ' 66 Zoning Board code allows
3 the house on a nonconforming lot to not
4 exceed 25 percent of the lot area. It seems
5 the house across the street, according to
6 the building permit files , is a 2 ,028 square
7 foot house on a 7 ,500 square foot lot which
8 exceeds the 1966 code. The 1989 building
9 code downgrades to . 20 percent . So again,
10 that house size exceeds it .
11 When we look at the house it looks
12 like a- very big lot it is on. As far as how
13 it affects the neighborhood, we are looking
14 at .real `,estate. compar.ati_ve values . When the
15 parcel across the street sold, the asking
16 price for the Spano house was $150 ,000 .
0
E 17 When they sold, they sold us two separate
a
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18 parcels for one hundred five and forty-five
0
19 thousand. When real estate comparative is
m
20 done people are going to say what the houses
21 of the neighborhood sell for. They are
22 going to say the house across the street
23 sold for $105,000 . -It is not going to help
24 our comparative real - estate value and this
25 is what we are concerned about .
1 28
2 We are all concerned about precedent..
3 Does this set any kind of precedent, to
4 allow other owners. in 'the neighborhood who
5 had to do the'.same exact thing and this is
6 to subdivide their property and put a house
7 up? I would like to do it. Mr. Ochsen-
8 reiter would like to do it . We could make a
9 nice profit. Maybe we should call the
10 Building Inspector and ask for this building
11 permit right away. Maybe that is the
12 procedure,.
13 That is about all I have to say.
14 Thank you:
15 THE CHAIRMAN: Thank you.
16 MR. TOHILL: Just to explain for the
0
0
17 record on that point, we are dangling two
18 offers right now; each of $165 ,000 for that
0
19 house. I said that so everybody understands
m
20 in terms of damages, what 's at stake here,
° 21 $165,000 .
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22 Could you, in talking, about this with
23 special counsel and Town counsel, give some
24 consideration to rendering a decision before
25 everybody . . . assuming you judge against
1 : 2:9
2 me I' always--,.;think the worst -'case`,- c -
3 .- assuming. you, vote against, me. on this app11-
4. ,'cation',. could' you' do it in a:way wher'e•,:.you
5 do .it nicely-.but alsd tha-t: you' do'it .on one
6 night .where the hea'rih4 doesn' t occur. two -
minutes l.ater;-.,because •at,.tha.t ,point. we
$ don' t know. 'on our end_ 'of thus what is
s ' happening? ' 'But i`f` `you do'"it� one night and.
10 the: 'hea:Rring occurs two'yweeks or four ,w;eeks
11 later ,that `:would ,be a ;better way. for -us .to
t2 - do it because <ths, hearing; .is ".going ` to take,
13:, `.I. have. a: hunch;:.,'ma:ybe .,a11 :night 'and " .
14 :•THE ,CHAIRMAN: We have been going 12
6. to 16 hours .on .a hearing. We have four
16 consecutive :nights of, four hours:.
f 17 'MR.' D'IN:IZIO: You know, on what you
18. just ,mention'e'd to' us-; I, 'have a couple of
,- questions Perhaps :you cane cl 'ear them' up.
20 . -I,'.would just' like .to .know' are.,you ' '
.:saying, that because '`the:.applicant, waited
21
22 : such..a -long. period of time and because t•he•.,
23, peopl e , spent"' so..much money that,. there is no
24, l ongsr a challenge?
25 MR., TOHILL: .- -This is a combination .of
1 30
2 the two. The courts have held that without
3 the spending of money by Inland Homes , if
4 you wait too long you lose your position to
5 object without the spending of money.
6 The exact wording in the Marone case, which
I don' t have in front of me, is that the
8 delay of more than 120 days , in this case it
9 was 127 I think, the delay of 120 days is
10 unreasonable.
11 In that case, and I hope you will get
12 a chance, each of you, to read it, you will
13 be stunned by the factual overlap from that
14 case to this case. The objectant, the
15 person in the position of these gentlemen,
16 was an 'attorney I am-'sad -to report . He
17 watched a neighbor with a building permit .
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18 He knew- the neighbor had a building permit
= 19 and he waited until the neighbor started the
° 20 excavation. Then the next day, he went into
m
0
a
21 the Building Department, filed the Zoning
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6
22 Board application, and when the case came up
23 the Zoning Board said you came in too late.
24 We are dismissing your application.
25 He then sued' the .Zoning Board, went
1 31
2 to Supreme Court, and the Supreme Court said
3 you waited too long. One hundred twenty
4 days is too long. You waited. It was 127
5 or 137 ..
6 I mentioned before the number of days
7 that we have here, and' it .pales in compari-
8 son because you have here 164 days . Now,
s the court in .New York; as I mentioned to
10 you, in a similar dispute involving Shelter
11 Island '-and the house under construction
12 there', in the last 18 months the Supreme
13 Court in .Riverhead picked up the same points
14 and used it again . . . so that it is a combi-
15 nation. It is first and standing alone, the
16 120 days is too much . . . here, 164; and
0
17 second, if they watched the man or if they
0
0
18 ought to know that the man is now spending
s
_ 19 money or, as in this case, engaging the con-
20 tractor, having already .dug the foundation
m
3 21 back in August . . . by the way, August . . . I
22 mean,. that is. a sure sign that somebody has
23 got a building permit to do something . . .
24 having done that and waited until he engages
25 in contractors , the sub, and then waits
1 32
2 until he engages in material men and then
3 puts his so-called bail and ,hold order,
4 which he did with the entire. lumber , list , I
5 am saying without any question there isn' t a
6 single case in the history of New York that
7 allows these people to proceed at this
8 point .
9 Having said that, they said, "Where
10 is your lawyer?" That is not this Board' s
11 concern. That is not our concern. They
12 have a remedy.. They have a remedy for that ,
13 but it is not this Township or this Zoning
14 Board resolving the problem on it, certainly
15 not our problem. So we should be permitted
16 to proceed. The long silence and long
0
0
17 failure to take a right when they came in
18 the front door of this building has great
19 legal significance.
20 That Building Inspector is not here
21 for nothing. Under Section 138 of the Town
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22 Law, and I invite you all to read it, it
23 says what he is supposed to do . And if you
24 read what' he is supposed to do, one of the
25 things. is. issue orders and determinations on
1 33
2 the complaints of .people like Mr. Ochsen-
3 rei ter and Mr. Lenceski .. That is exactly
4 what , his role is , but failing to consult him
5 and leaving him in the dark and talking
6 instead to your own attorney, is hardly the
7 key way to get to this Board. I am sorry'-
8 MR. DINIZIO: In that same vein,
9 would you have any idea how long it would
10 take for the Building Inspector, or how long
11 by. law does he have to issue a determination
12 on the stop work order?
13 MR. TOHILL: I don' t know of any case
14 where they say that the Building Inspector
15 took too long. There are some where having
16 been asked the question the Building
0
17 Inspector remained silent and didn' t give
18 any answer.- . For example, when , you have a
s -
= 19 chance to read' it, the one I mentioned
W
m
20 earlier from 1.967 , the Building Inspector of
o -
21 a greenhouse . . . which is in the Town of
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i
22 East Hampton, by the, way . . was asked the
23 question so that. they did .at least that part
24 done there. He was asked. the question.
25 Surprise. He gave no answer.
1 34
2 Next surprise: The applicant went to
3 the Zoning Board. Next surprise: They
4 lost . ' Next surprise: The Court said asking
5 him the question and getting silence back is
6 not enough .to give you a Zoning Board of
Appeals jurisdiction. In other words, if
8 you have half of it , the question asked to
9 the Building Inspector with no answer, that
10 is not enough to give you an order and
11 determination.
12 Under 267 , Sub 2 , that I mentioned
13 here, you do not even get the half . They
14 ignored the Building Inspector. Everybody
15 conceded they ignored the Building Inspec-
16 tor. That was a fatal defect . It was not
0
0
17 done by Mr. Ochsenreiter or Mr. Lenceski ,
18 as if they knew how to operate in the Town
19 government, but it was done presumably by an
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20 attorney "who' was licensed to practice, to
m ,
0
a
21 live in this community and practice in this
22 community with the firm that has been
23 here.. . . .. I know they have represented my
24 client too, since 1986 . I guess they know
25 what they are doing in this area of the law
1 35
2 and if they made a problem that ' s now going
3 to .become a problem for these objecting
4 neighbors .
5 As I say, that is not for us . That
6 is not for you. That is for them, Mr. Ross ,
m
7 Wickham, Wickham and Bressler, and these two
8 neighbors .
9 MR. DINIZIO: So I guess we could
10 pretty much assume the building permit was
11 posted for a year and a half out in front of
12 the house.
13 MR. TOHILL: No. You don' t seem to
14 assume that . . . when the foundation went
15 in . . August 30 , ,that is the kind of in-
16 dicia that the cour.t �wil'l recognize as the
0
0
17 moment. when the neighbor' ought 'to know that
18 something happened and, as a _matter of fact ,
s
19 they did know that something happened and
Z
20 they started a. chain of events that brings
21 us here this evening.
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22 Unfortunately., the key ingredients
23 are' all missing . . . consulting the Building
24 Inspect'o;r'. and waiting,_'. and waiting, and
25 •waiting even sending the mailing notice
i
J 1 36
2 saying you .can examine the petition in the
3 Zoning Board office five days from this date
4 and doing that on January 9 , having received
5 on January 10 and then not filing it until
6 January- 19, and 'then not giving a copy, not
even a courtesy copy, from the petitioner' s
8 counsel to their own clients, Inland Homes,
9 creating a situation where I came. in and
10 Doreen kindly gave me a copy with the bill
11 to pay down at Judy Terry's office.. That is
12 the way this works .
13 So that was when we first got to see
14 exactly what they were saying. At that
. 15 point, the house was completed on January
16 19 . As I said to you before, the roofer was
0
0
17 coming on the site on Saturday, January 20 .
18 The house was roofed, that is to say, the
19 shingles were put on the sheathing that .was
20 already on the house that had walls , was
0
21 complet,ely framed .out exactly as you see it
22 standing there today.
23 THE CHAIRMAN: . Can I ask. a question?
24 What is the present condition of the house?
25
1 37
2 w MR.- ', TOHILL: It is subject to the
3 completion of the interior wallboards . . . .
4 interior wallboard installation, plumbing,
5 electricity, everything is done . . . doors ,
6 windows , everything.
7 (Whereupon,, pictures were handed to.
8 the Chairman by Mr. Lenceski . )
9 MR. TOHILL : Could we have for the
10 record an indication as to the date that
11 they were taken, ,which is ten days ago? Let
12 me see them. Are these the ones taken . . .
13 no.
14 THE. CHAIRMAN: I have pictures in my
15 office, Mr . Tohill . It was taken Sunday
16 morning, 7 : 30
17 MR— TOHILL: Okay. I don' t think
18 there .is any question that the house .is
s
19 completed; is there?
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m
20 ' THE CHAIRMAN: There is no question
21 that the exterior wall was completed. That
22 is correct , yes . ''
23 Do you have. any other questions , Jim?
24 MR. DINIZIO: No . Just that I went
25 by there. I went by there yesterday;
� 13f
1 38
2 the day before, and quite honestly, I didn' t
3 see the building permit. What I am saying,
4 all I am asking is that it was posted.
5 MR. TOHILL: It was given to me as
6 part of this proceeding. I asked for that .
m .
7 THE CHAIRMAN: Do you have it. with
8 you?
9 MR. DINIZIO: I need to basically
10 understand to make my decision how, or have
11 some. idea when these two gentlemen were
12 aware that a house.' not a garage . . . not
13 a building . . . that could go alongside a
14 house . . . okay. . . . and be part of those two
15 lots . . . that would not be residence. I
16 need to know when they were aware of that .
0
0
17 A building permit being out .front? Sorry,
18 anything could be going .up.
19 So, all I really want to know is if
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20 that building permit was posted outside and
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21 when it was posted outside, and obviously it
a
u
z
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22 is, not, there, now.
23 MR. OCHSENREITER: Could I just say
24 one thing as . a citizen? I 'petitioned the
25 government of Southold for redress , and I
1 39
2 got a . letter dated October 17 , or there-
3 abouts .
4 THE CHAIRMAN: I have the letter.
5 MR. OCHSENREITER: The one I gave you
6 from Mr. Schondebare's office . I assume he
had . . . at that time he was an official of
8 the Southold Town government . I . took that
9 to mean he had been informed. What the
10 procedure was from there, I have no . . .
11 obviously, no idea. Nor do I think I am
12 required to have. My delay was not to see
13 the house go up. I assumed, based on Mr.
14 Schondebare's letter, that it was under
15 consideration.
16 THE CHAIRMAN: Could I just ask you a
0
17 question, Mr. Ochsenreiter?
18 In .other words , what, you are saying
0
19 is that because of the lack of wood con-
. 20 struction you assumed that something was
0
21 happening concerning Mr—Schondebare's
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22 action concerning this particular project .
23 Is that 'what you are saying.
24 MR. .00HSENREITER: Precisely. The
25 foundation was put in . . . forgive me for
1 40
2 some of the dates . . . and it sat for quite a
3 while. It was prior to October 17 . The
4 foundation was put in. Above-grade con-
5 struction started on Martin Luther King Day,
6 January 15, with the foundation. It sat
7 from October until such prior, to Martin
8 Luther King Day when it was backfilled, and
9 above-grade construction started on the
10 19th.
11 'THE CHAIRMAN: Thank you, Mr. Och-
12 serireiter. If there is nothing right now, I
13 'would like to just take a five minute recess
14 with the attorneys in the Town Board room
15 . . . assuming it is unlikely we will dismiss
16 the case . . . at which time I will come back
0
0
17 and only deal with the particular issues
18 that you mentioned and my particular opinion
19 concerning the way I feel this particular
W
20 case should go. It is very simply one
0
21 person of the Zoning Board mentioning this,
22 and I -will tell you the way that I feel
23 concerning this .
24 I reviewed the foundation since its
25 inception: I have discussed this issue on
1 41
2 December 13 , with .the owner of the property,
3 Mr. Robert Hill (phonetic spelling) , who I
4 have known for 23 years and in fact built my
5 first house. My discussion on December 15 ,
6 or. thereabouts , with James Schondebare
7 concerning this letter that Mr. Ochsenreiter
8 gave me tonight .'. . and I will afford you a
9 copy of it, and I give Mr. Ochsenreiter a
10 copy of this back again . . . right after I
11 discussed it with . . .
12 MR. TOHILL: When you said you knew
13 about the foundation from the inception,
14 what is the inception date; August 30?
15 THE CHAIRMAN: Inception date was
16 about mid-October .
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17 MR. TOHILL: How did you learn about
18 it?
19 THE CHAIRMAN: I rode by and saw it .
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20 MR. . TOHILL: Did somebody ask you to?
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21 THE CHAIRMAN: No.
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22 I need a motion for a recess of five
23 minutes . So anyone in favor . . .
24 BOARD. MEMBERS: . Aye.
25
1 42
2 (Whereupon, a brief recess was taken
3 at 9: 23 .p.m. and the proceeding resumed at '
4 9 : 33 p.m. )
5 THE CHAIRMAN: . I need a motion to
6 reconvene.
7 BOARD MEMBERS: So move.
8 THE CHAIRMAN: All in favor?
9 BOARD MEMBERS: Aye.
10 THE CHAIRMAN: Mr. Tohill , ,for the
11 record, and applicants , we have discussed
12 this matter with the Town Attorney. It is
13 encumbent upon us to really question what
14 has been brought to us tonight in reference
15 to the lack of having the jurisdiction in
16 this particular hearing of this case. We
o
E 17 have to question that in definitely two
a
18 modes . We have to again take it to our
19 attorney and to our special counsel , and we
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20 can only do that once this transcript is
o
21 transcribed into clear and concise form.
a
22 So we are going to have to recess
23 this hearing, and to deal with that on this
24 particular basis . I will tell you for the
25 record, Mr. Tohill , that when I rode down
1
43
2 Bayer Road after reading something about
3 this, in the newspaper, I honestly and truth-
4 fully" thought that this foundation was for
5 the garage or something other than what it
6 was for because it. was a rather small
7 foundation. That was sometime mid-October,
8 mid= to late October in this particular
9 case, and that is my feeling on the whole
10 situation: What happened or what . transpired
11 after that, I cannot tell you.
12 I also can tell you, however, though,
13 that before us is a case . . . and, I will not
.14 discuss the merits of it . . . not before us ,
15 but before Article 78 has been filed with, I
16 believe, Judge Luciano (phonetic spelling)
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17 . . . it may take more for the 25,000 square
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18 foot building, the period of time that
= 19 elapsed between the building permits and the
20 actual commencement of the construction is
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21 much more time than existed in this
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22 particular .project .
23 MR. TOHILL : I am familiar with the
24 case. I have spoken with Richard Larke,
25 that told me he didn' t know anything about
1 44
2 the area of the law on the night he was here
3 and that the first he learned about it was
4 to read the document I was holding in my
5 hands 'a few minutes ago.
6 THE CHAIRMAN: So at this particular
time, unless anybody has anything else they
8 would like to discuss , anything that you
9 would like to discuss concerning . . .
10 MR. TOHILL: No . Just to say
, again
11 for the record, I am reserving every right
12 that my clients have to raise every
13 objection as necessary to protect my
14 clients ' interest and if it becomes
15 necessary to do that, we. will do it . I
16 would like you to keep in mind, if you can,
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17 that housekeeping side of it just so it is
18 easier for everybody if.., that is the
= 19 direction we are going in.
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° 20 THE CHAIRMAN: Mr. Ochsenreiter.
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21 MR. OCHSENREITER: May I submit
22 copies of two newspaper articles , both dated
23 October 26, 1989; one from the Suffolk Times
24 and one from the Traveler-Watchman,
25 concerning this .building?' ,
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2 MR. TOHILL : Could I just see them?
3 I have not seen these articles before, but I
4 believe' we are now reaching the merits and I
5 think the Board has already ruled we are
6 going to hold off on doing that . I have no
objection if , when we reach the merits , I
8 don' t believe we ' can keep anything out
9 including the kitchen sink. Right now, if
10 these come in, I want to get into the merits
11 and I am telling you a number of people are
12 going to get called and some are going to be
13 a little surprised when they are called.
14 THE CHAIRMAN: Why would you have an
15 objection to. this gentleman entering them?
16 MR. TOHILL : Because I would have to
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17 do something to meet the contents of the
18 newspaper articles , and I understand what he
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19 is trying to do. We are starting the hurt
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20. part now. I mentioned before, I said people
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21 will get hurt . I am trying. to avoid people
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22 getting hurt here tonight and if you tell me
23 you want to put this in I am going to take
24 it as permission to start the hurting and I
25 am going, to do it and people are going to
1 46
2 get hurt and they are sitting in this room
3 tonight . I don' t want to do it .
4 I have taken .a , lot of steps in. the
5
past ten days -to avoid this -happening and if
6 anybody can: te1l me the reason that this has
something to do with three legal points that
8 I made tonight. involving Section 267 , Sub 2
9 and 267 , Sub 3, and Hilbert versus Hass , if
10 somebody can tell me what these articles
11 have to do with that , I am here to listen to
12 it . If they- can' t intelligently connect
13 these to that and that is what the Board has
14 already decided . . . only deciding right now
15 . . . 'then I am saying to you that we have
16 moved beyond the housekeeping procedural
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17 preliminary issues we have been discussing
18 all .night .
= 19 THE CHAIRMAN: This is the way we are
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20 going to take care of this . We are going to
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21 ask you to move outside with counsel and Mr.
22 Ochsenreiter, and discuss this particular
23 problem to see if he can enter this in at
24 this particular time.
25 MR. TOHILL: I very much appreciate
1 47
2 what you are doing but there are parts to
3 this where I will not,. as an attorney
4 licensed to practice who values. the license,
5 engage in this conversation off the record,
6 outside of this room, with this gentleman
standing to my immediate left or the other
8 gentleman who was here this evening or
9 anyone else who is individually 'involved.
10 There are reasons that will come out
11 ultimately, not maybe in this quorum but
12 they are certainly going to come out in
13 another form, and more of what I am trying
14 to avoid is going to occur.
15 If you send me out of the room I am
16 going to be obligated to explain to this
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17 gentleman what I am being so mysterious
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18 about with you. I , don' t really want to do
19 that because somebody who is not here
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20 tonight and somebody who is here tonight are
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21 going to be the first two people hurt . I
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22 don' t want to do that . I don' t want to do
23 it . If he doesn' t know what I am talking
24 about, rather I know he doesn' t know what I
25 am talking about, the best move for
48
2
everybody is that we pass, on :this tonight'
and .hol,d it : for ,.another ,day. and "i-f . it ,comes
"to,t,heother day' then :.everybody is ,going to.
5
have .-.to, be.-,invited. and you, are, going" to,;host.
' 6, an .evening that is going to be very
interes'ti,ng, .here But• until 'then " until
$..
then, let's hold off on, it�` do the' name ,of
9 civi Pity,.: in .,the nameof ,some..nice 4peopl e
10 who show-ldn :t be hurt, in the 'name of people
11 who are not eweri` here;'tonight,
12 THE,''CHAIRMAN: Let me ask Mr., Ochsen
i3 reiter a'-.r quest ion: ,
14 have not: read those .arti'cl es ''since
15 they .appeared iri'the' October' 26th- issue.
16 What ,was' the",.specific reason why you wanted
� .
17 to: enter them?
18 MR.'.'OCHSENRETTER:_ " ' ,Simply because 'the '
.':question ;of,: timing:"-came up . and '.why .'we ,waited.
20 ;
so long::
,f 21 MR,.' .TOHILL: Newspaper reporters ,are
22 . not, .going: to ,resolve, "the• problem'. -The '.
23 newspaper or, .'the,. reporter is not going` to ,
24 test "fy :on the. cold document that- I, did not
25 even get • to: 'cross-examine: .
1 49
2 That is not. going to ,resolve any of
3 the issues that I have raised and placed
4
inquiry :in' your lap. ' -When you -have the
5 opportunity to speak to counsel and when you
6 have the opportunity, to review the case law,
you will see that you have the information
8 you need "right now to decide the motion on
9 any of the three bases, but to have
10 from the Traveler-
11 Watchman or Bill Fallon (phonetic spelling)
12 f„rom the Suffolk Times personally appear
13 here in pieces of paper that don't talk.
14 I was not .born yesterday. None of
15 you were, and -we ought not ruin the record
16 as it now stands by putting material in
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17 there that is not anything except inflam-
18 matory and intended quite honestly do to
_ 19 nothing but sell newspapers .
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° 20 THE CHAIRMAN: Okay. At this
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21 particular point do you have any objection
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22 to withdrawing this?
23 'MR. OCHSENREITER: Fine.
24 THE CHAIRMAN: Thank you. I appre-
25 ciate it .
1 50
2 MR. DINIZIO: Not withdrawn.
3 THE CHAIRMAN: At this particular
4 time.
5 MIR. :`DINIZIO,: Just the information.
6 THE CHAIRMAN: At this particular
7 time, only. 'at' this- particular time. Not the
8 application.
9 Hearing no further comments, 'I make a
10 motion recessing this hearing some time ' to
11 the latter part of February. As soon as we
12 get the transcript, we will afford counsel
13 and special counsel with those to discuss it
14 and we will then readdress this issue by
15 advising to the public and we will be back
16 here and hopefully we will do it as expedi-
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17 tiously 'as possible.
18 We thank you all for coming in.
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19 . MR. TOHILL : Could you simply state'
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20 you will -have Doreen or somebody notify Mr.
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21 Ochsenreiter, Mr. Lenceski , and me when that
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22 is so I am not pinned down to reading the
23 Traveler or the Times?
24 THE CHAIRMAN: We have never done
25 that, Mr. Tohill . I' would suggest calling
1 51
2 our office. on the 16th of February, the day
3 after our next scheduled meeting. Thank you
4
very much.
5 I offer that as a resolution,
6 gentlemen.
BOARD MEMBERS: Aye.
8.
9
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13
14 I , GAIL ROSCHEN, do hereby certify that I am
15 an Official Court Reporter and that the foregoing
16 constitutes a true and correct transcript. according
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17 to my official stenographic notes .
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18 >
. 19
r�
w GAIL ROSCHEN
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20 Official Court Reporter
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