HomeMy WebLinkAboutZBA-05/30/1990 HEARING 1 TOWN OF SOUTHOLD
COUNTY OF SUFFOLK STATE OF NEW YORK
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3 SOUTHOLD TOWN ZONING BOARD OF APPEALS
HEARING,
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Town Hall
6 53095 Main Road
P.O. Box 1179
7 Southold, .New York 11971
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May 30 , 1990
9 7 : 36 P.M.
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11 B, e f o r ee
12 GERARD , P. GOEHRINGER, Chairman
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i4 APPEALS BOARD MEMBERS:
15 CHARLES GRIGONIS, JR. , Absent
16 SERGE DOYEN, JR.
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17 JOSEPH H. SAWICKI
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18 JAMES DINIZIO, JR.
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20 Also Present :
21 Doreen Ferwerd.a
Board Secretary
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24 GAIL ROSCHEN
Official Court Reporter
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2 THE CHAIRMAN: This is a special
3 meeting called by the Zoning Board of Appeals.
4 We were making decisions and we are reconvening
5 now into a regular special session including
6 several, applications that we have been holding
7 in abeyance and have been recessed.
8 The first appeal is Number 3920 . I ��
9 see the contractor is in -the audience. Is
i0 there- anything you would like to add to the
11 hearing? The purpose of this recess was to
12 deal with. the lot coverage issue concerning
13 this particular_ piece of property. We are
14 aware of the memo from the building inspector
15 and we don' t have .any particular questions
16 concerning it. I don' t.
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17 Do vou have an;T?
18 MR. DINIZIO: No. It speaks for itself_.
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19 THE CHAIRMAN We will now be able to
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20 make a decision based upon the information
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21 given to us.
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22 MR.. .,BOHN: Robert Bohn. We won° t
23 have the decision tonight.
24 THE CHAIRMAN: You could. I art not
25 guaranteeing it. It depends upon how lengthy
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2 we get. We 've only gotten three decisions ,
3 and we have about •12 or 15 to do.
4 MR. BOHN: I would be notified by mail.
S THE CHAIRMAN: Yes.
6 MR. BOHN: Okay. - Then you don' t need
7 me here.
8 THE CHAIR-MAN: I don' t need vou'. I
9 thank you for coming down and I hope I didn' t
10 inconvenience you in coming down.
11 N.R. BOHN: Okay. No.
12 THE- C,HAIRMAN: Anybody else that would
13 like to speak concerning the application, eithe_
14 pro or against? Seeing no hands, I make the
15 motion closing this hearing- and reserving,
16 decision until later'.
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17 MR. DOYEN: Second.
s 18 THE CHAIRMAN: All in favor?
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= is MR. DOYEN: Aye.
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20 MR. SAWICKI : Aye.
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21 MR. DINIZIO: Aye.
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22 THE CHAIRMAN: The next appeal -- these
23 appeals have been open before. That':s why
24 we are not reading the legal notice. It is
25 Appeal Number 3933 , in behalf of Pamela
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2 Valentine. Is she in the audience?
3 Could I ask you to use the mike, please?
4 At the least hearing we did open, I realize..
5 there was a problem with advertis'i.ng .and
6 sending --
7 MS. VALENTINE: Pamela Valentine. It
8 was not advertised and we were not properly
9 notified.
10 THE CHAIRM N: Would you give us any
11 statements that .yoti "would like for the file,
12 please?-
13 MS. VALENTINE: Yes . I would like to
14 make one' statement about the description of
15 our application for permission to build an
16 eight-foot fence. The application was actually
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17 for a six-foot fence, except for the limited
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18 area 'on that front of Main Road and that was
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19 the only frontage where we applied for an
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20 eight-foot fence. In fact, it may be a seven-
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21 foot fence in that limited area, but the fence
22 is going to be a six-foot fence if it is
23 approved.
24 THE CHAIRMAN: I wanted to have the
25 Town Attorney speak, to the Board, because we do
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2 not normally grant these. You are going to
3 have to tell us why you want it. This
4 definitely is in the front yard area. It is
5 on the main road, and you 'have got to explain
6 to us why you want it.
7 MS. VALENTINE: Well, we want it:
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8 1) Because of the increasing traffic from the
9 ferry which I think is pretty noticeable. There
10 was an article in the Suffolk Times. just last
11 week. It is not only us, but a lot of people
12 are realizing that the traffic is just becoming
13 a problem. ' There is a lot. This lot in par-
14 ticular suffers because it is closer to the
15 ferry than - - it is not in Orient Town itself.
16 It is way outside of the town. We don' t have
17 any neighbors who would be able -to see the
is fence from their yard or their home. The
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19 ferry traffic at that point isn' t broken up,
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20 at all. We just have strings of traffic.
21 Quite frequently it is strings of commercial
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22 traffic.
23 THE CHAIRMAN: You presently have there
24 a split rail fence and there are bushes around
25 this split rail fence.
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2 MS. VALENTINE: Yes.
3 THE CHAIRMAN: What are you doing? Are
4 you taking out the split rail fence and putting
5 in .a stockade fence in place of that?
6 MS. VALENTINE: The fence we propose
7 to put in would be in the exact location of
8 the split rail fence, which I believe is about
9 10 feet from the road, and the fence would be -
10 I really. don' t know if stockade is the right -
11 it would be a tongue and groove cedar fence.
12 THE CHAIRMAN: You mean like a woven
13 fence.
14 MS. VALENTINE: Can I approach?
15 THE CHAIRMAN: Sure. That' s why we
16 asked you to .come.
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17 MS. VALENTINE: It would be kind of
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18 like this.
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19 (TAS. Valentine providing the Chairman
20 with a picture)
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21 (Discussion held off the record)
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22 THE CHAIRMAN: Thank you. Would you
23 be planting? First of all, I was over there
24 and we are familiar with the property. We
25 had litigation on this before.
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2 MS. VALENTINE: I am aware of that.
3 THE CHAIRMAN: I was unable to pick.:.up
4 any monuments to locate, to see where the
5 actual property line started. So that is the
6 reason. for my ' question, in reference to place-
7 ment of where the split rail fence is,
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8 because with the copy you can see it from there
9 It .really just takes the property line. and
10 draws a red line through it, and I do not
11 know the exact placement of where the fence
12 is going to be. Would you be planting anything
13 in front of this fence so as to shield it,
14 in any way?
15 MS. VALENTINE: I don' t believe we
16 would be planting anything in front of it.
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17 There are flowers and low, very low plantings
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18 in front of the fence where it is. To the
19 extent that those could be saved, we would
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20 save those and to the extent that we can save
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21 any plantings that are presently there, it
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22 would remain.
23 THE CHAIRMAN: What is the purpose of
24 the eight-foot fence in front of the easterly
25 lot?
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2 MS. VALENTINE: The seven or eight-foot
3 fence in front of the easterly lot is because
4 when we" initially purchased the property we
5 were hoping to put a' tennis court in that lot.
6 As it stands now, I don' t think either of us
7 could go out and play tennis because of the
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traffic out there. If, in fact, we do decide
9 to put a tennis court, we would like a slightly
10 higher fence in that area: 1) For the
11 protection and because it wouldn' t be .seen
12 from the house as much as you would see the
13 seven-foot area fence. If you are going to
14 deny our application because you object to
15 the eight-foot fence, what we would be willing
16 to do is listen. to your proposal on limiting
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17 it to a six or seven-foot fence in that area.
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18 THE CHAIRMAN: The fence is for the
= 19 sole purpose of keeping balls off the road,
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20 evidently, or is it for the purpose of
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21 shading ;the property from the viewer?
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22 MS'. VALENTINE: I think it serves both
23 purposes, actually.
24 THE CHAIRMAN: I thank you very much.
25 I don' t have any further questions. We will
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2 see if anything develops. I don' t know if
3 there is anybody else here in the audience
4 that is going to discuss your application,
5 but we thank you for coming in.
6 MS. VALENTINE: May I ask the same
7 question the gentleman before me did? Do you
8 have any idea when the decision will be made?
9 THE CHAIRMAN: We would dearly like to
10 make all ,these decisions tonight. It depends
11 on how late we get with the remaining hearings
12 we have and, if not, we will definitely
13 make it within: ;. the next week or so.
14 MS. VALENTINE: Thank you.
15 THE CHAIRMAN: You' re welcome.
16 Is -there anybody else that would like
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17 to speak in favor of this application? Anybody
18 that would like to speak against the appli-
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19 cation? Any .further comments from anyone,
20 Board members?
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21 MR. SAWICKI: No.
22 THE CHAIRMAN: Hearing no further
23 comments, I make a motion closing this hearing
24 and reserving decision until later.
25 MR. SAWICKI : Second.
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2 THE CHAIRMAN: All in favor?
3 MR. DOYEN: Aye.
4 MR. SAWICKI: Aye.
5 MR. DINIZIO: Aye.
6 THE CHAIRMAN:. Thank you very much for
7 coming in.
8 The next appeal is in behalf of 3914.
9 We will ask Mr. Lark if he would like to say
10 anything concerning the letter we received
11 from the Suffolk County Soil and Water Con-
12 servation.
13 MR. LARK: Richard Lark, Main Road,
14 Cutchogue.
15 I have read over the minutes of the
16 last hearing. I have one, correction. I
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17 stated the erosion that has taken place is
18 about' a foot, a year on top of the bluff. That
19 is 'incorrect. It is about a foot every two
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20 years .. I have remeasured that. I have been
21 up there since 1968 , -nd we just replaced the
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22 deck on the association property. It was
23 about 10 years ago .we had replaced it. I
24 measured what the difference was, the recession,
25 and it' s following the way it has. been. I
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2 checked with Young' s office (phonetic) and
3 that' s what their records seem to indicate
4 on the Sound' s bluff. That' s the correction
5 there.
6 The soil and water letter that I got
7 from Mr. Tenyenhuis' technician is essentially
8 the way I explained it to you the last time.
9 There is only one thing that you should be
10 aware of. The large rock that you saw is
11 actually. on the' Donoleski (phonetic) which,
12 I guess, is now the Abbott property. It is
13 not on this one. It is 10 feet over. That
14 pretty much frames .the lot for you if you are
15 looking at it from the Sound, which I believe
16 you did, Mr. Goehringer. Other than that,
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17 it is pretty well self-explanatory which is
18 why I think it is in everybody' s best interest,
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19 especially any future .landowner there, that
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20 the house be constructed as far to the south
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21 as possible, to allow for that.
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22 I looked at the house two properties
23 away owned by Bryant, which this Board granted
24 a variance in 1978 , and he built his house
25 about 27 -- he had a 25-foot variance from
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2 the 35-foot requirement at that time and in
3 178 he built it about 27 feet and he wishes --
4 he heavily vegetates his every year -- and he
5 wishes he was a little closer to the 'road
6 because he gets nervous so they don' t have
7 a repeat of what .they had in Rocky Point several
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8 years ago. Given the fact you've seen the
9 stub. end of the road, Glen Court there, and
10 the fact that it was not intended to be open
11 and the landscaping easement can be worked out,
12 I think it is probably an ideal solution. I
13 know the association is pushing that heavily,
14 because it will clean up that area and get
15 the house back as far -- Another thing I didn' t
16 point out, the mansion, the big white house
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17 you saw there -- the further south that you
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18 put this house, and I talked to Mr. Demskie
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19 (phonetic) who talked to the owner, the less
20 it interferes, not that you care, with the
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21 view of that house. The further you put it
22 towards the Sound, the more it can interfere
23 with the view. So all things considered,
24 even though as you indicated in your
25 correspondence it is somewhat unusual, I think
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2 it is the practical way to handle the problem.
3 Another thing I want to state for the
4 record, I insisted that the application come
5 before you because the Building Department
6 did not interpret the zoning code the way I
7 think it should be interpreted. I think the
8 hundred-foot requirement supersedes even the
9, pre-existing requirement because of the words
10 notwithstanding in the other provisions in
11 the chapter. They don' t agree with that. They
12 think the house could be put up. Whatever
13 decision you render, which I hope will be
14 favorable to the Petitioner, I would hope you
15 take the lead and do a little definition there.
16 This is an uncontroversial application. So
17 in another application you might have, you
18 can clearly -spell out by precedent-wise one
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19 section does supersede everything else in the
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20 ordinance, the requirement you've got to be
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21 back 100 feet from the bluff regardless of
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22 the pre-existing lots, and the people would
23 have to come in here for a variance of that
24 section.
25 In recap, I ''am asking for a variance of
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2 that 100-foot variance, I think it' s set back
3 65 feet, and I am asking for a front yard
4 variance which would be in effect 35 feet here
5 going back, and I am asking that it be set
6 as close to the road as the Board deems prac-
7 tical. I am asking for zero. The builder
8 would like 35 feet, but I just don' t think it
9 is realistic because one variance hinges on
10 the other. It is Catch-22, as you pointed out
11 the last time.
12 THE CHAIRMAN: Could you just furnish
13 us, if you .don' t have it tonight, the depth
14 of this house in reference to the north-south
15 depth. - I know we could scale it but --
16 MR. LARK: He doesn' t have that.
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17 THE CHAIRIMAN: It is not listed. The
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18 actual postage stamp or footprint is not
19 listed. It just shows a proposed house. We
20 may have it in. I don' t think I have seen it.
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21 I looked at this before. One morning I went
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22 down there, and I did not see it. It is not
23 something 'that has to be done tonight, Mr.
24 Lark.
25 MR. LARK: Okay. The, surveyor did
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2 leave it off. I think I described it in the
3 application'. You would like that shown on
4 the prints?
5 THE CHAIRMAN: Just so we know exactly
6 what we have there.
7 MR. LARK: The proposed house? Yes .
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I do mention it in the petition, the size.
9 I believe it is, but it is not on the prints
10 of the survey. I see that.
11 THE CHAIRMAN: Just have one of your
12 secretaries give us a call tomorrow.
13 MR. LARK: I can have the surveyor
14 locate that there, on there for you. That
15 way you would have it officially with exactly
16 what it is.
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17 THE CHAIRMAN: Thank you very much.
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18 Is there anybody else that would like
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20 there anybody that would like to speak against
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21 the application? Are there any questions
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22 from Baord, members?
23 MR. , SAWICKI: None.
24 THE CHAIRMAN: Hearing no ' further
25 questions, I. make a motion closing the hearing
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2 and reserving decision until later.
3 MR. SAWICKI : , Second.
4 THE CHAIRMAN: All in favor?
5 MR. DOYEN: Aye.
6 MR. SAWICKI: Aye.
7 MR. DINIZIO: Aye.
8 THE CHAIRMAN: The next appeal is
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9 Number '3895 , in behalf of the firm of Wickham,
10 Wickham & Bressler and we ask Mr. Bressler if
11 there is something he would like to furnish
12 us with?
13 MR. BRESSLER: Yes. For the Applicant:
14 Wickham, Wickham& Bressler, P.C. , Main Road,
15 Mattituck, . New York 11952, by Eric J. Bressler.
16 At this time, gentlemen of the Board,
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17 I have been instructed by my client to withdraw
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18 this application without prejudice. I apologize
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19 to the Board members for the late notice and
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20 any members of the public who are in the
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21 audience tonight who thought there would be
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22 something happening, but only this afternoon
23 I communicated with Mr. Schroeder who expressed
24 his intentions to me in this regard.
25 THE CHAIRMAN: Would you furnish us with
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2 a letter?
3 MR. BRESSLER: Certainly.
4 THE CHAIRMAN: We appreciate that.
5 MR. BRESSLER: Because of the lateness,
6 obviously, I did not have time to get one.
7 THE CHAIRMAN: Thank you so much.
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8 Anybody else? In this particular case,
9 it is kind of pro forma that we are going to
10 accept the request. I do not know what other
11 avenues are involved here, so if there is
12 anybody in the audience that is concerned about
13 this, I would suggest they contact the Town
14 Attorney after we are in receipt of the letter
15 which basically is something we have, at
16 this point, even though it is not reduced to
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17 writing. I make a motion -- what I better
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18 do is recess it pending the receipt of the
19 letter, and what I will do is actually close
20 it pending the receipt of the letter.
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21 MR. SAWICKI : Second.
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22 THE CHAIRMAN: All in favor?
23 MR. DOYEN: Aye.
24 MR. SAWICKI : Aye.
25 MR. DINIZIO: Aye.,
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2 THE CHAIRMAN: The next appeal is in
3 behalf of Nicholas Aliano, Appeal Number 3907 .
4 I would ask- Mr. Raynor if he has anything
5 he would like to add?
6 MR. RAYNOR: Henry Raynor. The
7 Applicant has requested we leave this hearing
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open to provide the Board with the engineering
9 information and a long form environmental
10 assessment form based on correspondence from
11 the Planning Board and their questions. I
12 believe the Board is now in possession of the
13 planning information. From Stephen Hyman
14 (phonetic) Associates. The environmental
15 assessment form has been submitted. This is
16 the same one that was submitted to the Planning
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17 Board on its initial presentation when this
18 project began, back in 1987 .
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= That pretty much concludes what we
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20 had to respond to. If there are any questions
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21 I will be happy to try and answer them.
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22 THE CHAIRMAN: The only I asked you at
23 the last hearing, and I should probably have
24 communicated it to you by letter, is the
25 exact size of the existing garage. I know he
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2 mentioned it was about 2 , 500 square feet.
3 I was wondering if you could send us a scale
4 of the actual size.
5 MR. RAYNOR: I will be. .happy to submit
6 it in writing.
7 THE CHAIRMAN: That' s basically what I
S am looking for, at this point,, if you wouldn' t
9 mind. I drive by it 14 times a week, and
10 every time I drive by it I do not have my
11 tape with me. It is probably better if it is
12 done in the form of a letter.
13 MR. RAYNOR: Fine.
14 THE CHAIRMAN: We appreciate that. Is
15 there anybody else that would like to speak
16 in favor of this application? Is there anybody
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17 that would like to speak against the appli-
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18 cation?
19 Yes, Mr. Bressler.
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20 MR. BRESSLER: Eric Bressler, Old
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21 Pasture Road, Cutchogue, New York.
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22 I am here, Mr. Chariman, Members of the
23 Board, in an individual capacity as a resident
24 of the area and homeowner. I reside on
25 Old -Pasture Road, Cutchogue, New York. As the
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2 Board' is aware of, Old Pasture Road is the
3 short road which runs into. Pequash Avenue and
4 Main Road, the location of the proposed project.
5 Thus I believe that the construction of the
6 proposed project at the intersection of Main
7 Road and ?equash Avenue is going to have a
8 direct impact on me as that is the principal
9 method, in fact, the only method of ingress and
10 egress on a direct basis from where I live.
11 I believe I am close enough and that I would
12 be adversely affected by this application.
13 That having been said, I would like to
14 address the merits of this particular appli-
15 cation. I am most distressed that this matter
16 is in front of the Board for the use variance.
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17 I don' t believe a use variance is the proper
18 vehicle for the Applicant to obtain the type
= 19 of relief he is seeking. I believe that the
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20 Applicant- , based upon my review of the records
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21 in this proceeding and what has been presented
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22 to the Board, has not established his case
23 before this Board such that it should grant
24 him relief. As the Board is well aware, the
25 use variance is an extremely drastic remedy and
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2 granted only under narrow circumstances . I
3 believe the •record is' actually devoid of any
4 information . to •warrant this Board granting
5 this type of relief. I . think what the Board
6 is faced with here is much more of a zoning
7 change, more akin to the zoning change primarily
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8 brought before another Board where different
9 considerations were brought into play.
10 I am not insensitive to the timing
11 difficulties that the Applicant has empowered
12 in connection with this particular project.
13 I truly believe that relief lies elsewhere,
14 and that this Board on the basis of what has
15 been put before it is not empowered to grant
16 the relief sought. I believe that on the
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17 purely individual basis, the legalities aside,
18 I just don' t think it is a very good idea to
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= 19 have a shopping center like that at the inter-
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20 section of Pequash Avenue and Main Road. I
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21 can tell the Board, from my own experience,
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22 at certain 'times of the day traffic at that
23 location is approaching the level at which
24 some sort of traffic control device other
25 than a stop sign may be warranted. I don' t
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2 -think that .is a `good idea, .given then the
3 proximity to the traffic light in downtown
4 Cutchogue. L think if the proposal is
5 approved by, this Board and ultimately installed
6 and the stores occupied would lead to a huge
7 traffic problem at the corner of Pequash Avenue
$ and . Main Road. I, for one, would be much more
9 satisfied with the current situation than I
10 would with the situation as proposed.
11 So on the strictly neighborhood basis,
12 I don ' t think it is a very good idea aside
13 from the fact I do not think the Applicant is
14 entitled to relief.
15 THE CHAIRMAN: Thank you, Mr. Bressler.
16 MR. ANDERSON: I am Richard Anderson,
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17 Cutchogue. ' I am also, Treasurer of the Fleets
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18 Neck Property Owners Association. We have
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19 members here this evening. We have our
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20 attorney, Anthony Nowachek, who I would like to
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21 ask permission to have him state our position
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22 regarding the variance.
23 THE CHAIRlvlAN: Certainly.
24 MR. NOWACHEKs Thank you, Mr. Chairman.
25 Anthony Nowchek, 326 Williams Avenue, Mineola,
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2 New York.
3 Members of the Board, Mr. Chairman, I
4 want to echo, like Mr. Bressler here, I am
5 a resident of the Fleets. Neck also. If you
6 want to, Mr. Chairman, you could poll the
7 residences of Fleets Neck area that are here
8 representing themselves individually and maybe
9 they want to address the Board and maybe they
10 do not, but Fleets Neck Property Owners
11 Association, as you are probably aware of,
12 _ is a bona fide incorporated property owners
13 association with legal standing status within
14 the. State of New York. It comprises of a
15 membership of approximately 125 property owners
16 and families, which -sole means of ingress and
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17 egress off Main Road to Fleets Neck is Pequash
18 Avenue.
19 Now I am not familiar basically with
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20 the type of building that they want to erect.
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21 I understand it is an office and store complex.
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22 I am aware, I think, and I am correct that
23 the existing use is probably a non-conforming
24 use as far as the present zoning. exists. I
25 think the Town and taxpayers footed a big bill
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2 to sort of have a master plan for zoning,
3 investigated, prepared, discussed, debated,
4 exacerbated and. everything .else, and now that
5. area becomes R-40. It' s residential. With
.6 R-40 we have:'greater density of residential
7 people than. you have with other areas. What
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. s is proposed in this particular situation is
9 to put in something. equivalent to a mini
10 shopping, center. One of my recollections, when
11 the master plan was discussed, was that the
12 spirit, the intent, and the good purpose and
13 everything of the. master plan was to really
14 have a community with a character. I think
15 your Board is the Board that really must carry
16 that spirit and intent to the end degree where
NE 17 the zoning specifically prohibits, and I
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18 echo Mr. Bressler, it is not a use question.
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20 to put business into a residential area.
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21 There is no dilemma about the definition,
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22 whatsoever. It is. not a question of use.
23 If you. look at the corner now, and you looked
24 at it about five years ago, five years ago
25 it as a mixed bag . of whatever was on that
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2 corner. If' you look at it again -today, I
3 don' t know what non--conforming use properly
4 or legally it has as far as the status is
5 concerned, 'but I know there is a real estate
6 office and next to it it looks like a used
7 car lot, it' s coming into being after there
8 was a sign put above' the garage that says
9 it is a repair shop.
10 Now if you look at Main Road, on the
11 south side of Main Road, you have Christmas
12 trees , Santas, a Christmas tree place. Now
13 that' s an indication of itself. That' s
14 agricultural. One of the things the master
15 plan really didn't want to see was strip
16 zoning. My way of looking at strip zoning
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17 is like a broken dotted line. You drop the
g 18 zoning area here. You leave a blank. You
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= 19 drop the zoning area and eventually you, have
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20 enough of strips that what will happen is
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21 you are going to have a straight line,
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22 because everybody caught between those strips
23 leaves and you have another Jericho Turnpike
24 from the westerly . end of the Town of Brookhaven
25 to the easterly end which almost joins Southold.
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2 If you permit this change of zone,
3 basically you will be permitting a strip to
4 be created. What is there to stop someone at
5 Eugene' s Creek (phonetic) , a block or half
6 a, mile down, to ask for the same type of change
7 of "use"? It really is a change of zone for
8 business' -use.-
9 I think legally there are several other
10 points to be considered, besides the change of
11 zone. ' There is also that problem of inter-
12 fering .with the flow .of traffic, particularly
13 the flow of traffic, pedestrian and motor
14 . vehicle, to and from Fleets Neck into Main
15 Road so they could proceed either east or west.
16 That' s been a bottleneck. That' s not
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17 describable for some time.
18 I basically think if you poll the
19 members here, I am speaking for the Association
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20 pursuant to resolution of the Board of the
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21 Fleets Neck Property Owners Association, and
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22 I believe they submitted a letter in opposition.
23 I am speaking also for myself, individually,
24 as a resident of Fleets Neck, and I also will
25 poll for you, if you will, -- individuals who
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2 want to speak and object for themselves ,
3 individually.
4 THE CHAIRMAN: Thank you.
5 Yes, ma' am.
6 MS. DOTY: Debra Doty. I am a resident
7 of. Fleets :Neck. '' I :also happen to. be an
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8 attorney. Mr. Bressler is absolutely correct.
9 This is really a• change of zone, but even if
10 you-look at, it as a change of use, the Appli-
1.1 cant has not provided you with sufficient
12 proof -to justify 'the issue of the use variance.
13 There is no . evidence regarding the rate of
14 return that he has received from the property.
15 He re-rented the property within a month of
16 the prior tenant being in that property.
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17 Second of all, he may, in fact, be in
18 violation of the variance that was issued in
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= 1974 for that property. I believe there are
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20 restrictions on that variance that say repair
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21 shops may not be in there. There is a repair
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22 shop there now. There is also absolute
23 evidence -- in fact, the Applicant admitted
24 that he will substantially change the neighbor-
25 hood by changing the use. There is going to be
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2 he admitted, 50 cars an hour in- and out ,of
3 those premises. That' s about one cat a minute,
4 or 400 cars a business day. He is increasing
5 the number of businesses in that location,
6 where the repair shop is from one. to eight.
7 Where the repair shop is, he is increasing
parking spaces by 264 percent, from 11 to
9 40 . It is a substantial change. Anybody
10 that lives down in Fleets -Neck, as Mr. Bressler
.11 stated,, and as the attorney for the Association
12 stated, knows what the traffic is like. It
13 takes forever to .get out. of there on a
14 summer, weekend, during the summer, during the
15 week and at Christmastime. It is a dangerous
16 intersection as it is, and we don' t need a
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17 strip zoning . there. I have an imageiof this
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18 as being a Pac Man situation, where under the
19 master .plan this was zoned residential but
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20 a little Pac. Man is going to come along and
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21 eat it and turn into business because of a
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22 change of variance there , a variance coming
23 through. And then up the street somebody else
24 is going -to be eaten up, and it is all going
25 to go all the way out to Orient. I don' t
1 29
2 think we should let it happen.
3 Thank you.
4 THE CHAIRMAN: Thank you.
5 Is there anything you would like to
6 say in rebuttal, Mr. Raynor?
7 MR. RAYNOR: Yes, Mr. Chairman. Thank
8 you.
9 I think part -of the point missed here
10 tonight is when this application was initiated
11 this was a conforming use to the property,
12 back in .19.87, prior to January loth. The
13 change was 1989. As to the intensity of the
14 traffic, two items have been brought out.
15 Number One,. I don't think that inter-
16 section is different in any way from that of
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17 Eugene' s Road. In fact, that traffic is
18 probably a lot more intense, taking all of
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19 Nassau Point' s traffic off that intersection.
° 20 With regards to the 50 cars, the appli-
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21 cation form asked for the maximum conceived
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22 per hour and that is where that number was
23 generated from, via the engineer.
24 THE CHAIRMAN: Thank you.
25 MR. ALIANO: Nicholas Aliano. I am the
1 30
2 owner of the property. The same people that
3 are here complaining are the ,same people that
4 bothered me once a month for the last 17 years,
5 "See if you can get rid of the junk cars. They
6 are doing auto body work. They have got to
have junk cars around. " I cleaned up this
8 place. I got rid of the gas pumps, in view of
9' the fact I was going to put up eight stores.
10 TV6, are talking about 4, 0,00 square feet. I
11 cleaned up this place. I got rid of my gas
12 tanks. I spent two months just getting rid
13 of junk cars and grease and so forth -- did that
14 corner real estate office, which was the gas '
15 station. I spent at least 15 or 20 , 000 to
16 make it look decent, and these same peopl here
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17 were into. my 'daughter, who' s here now, almost
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18 daily - - "Gee, a change. Gee, the place looks
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19 beautiful._ Great. "
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20 Now I 'm being penalized because the
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21 place looks nice. I don' t know what my next
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22 tenant is going to be, if he is going to be
23 like this one. I just point that out.
24 Also, they keep talking about a change
25 of zone. This 'is not vacant land. There is a
1 31
2 building on here, two buildings. So we are
3 not changing -7 the change of zone, my eyebrow.
4 I think it would be much nicer the way I wanted
5 to do .it, but that' s okay. You Board make up
6 your minds; but I am being penalized for cleaning
7 up the place. If I had junk cars -- they
s were the first ones to agree to put an office
9 building, but now that the junk cars are gone
10 I 've got a letter -- two letters,
11 THE, CH AIRMAN: , You want to respond, Mr.
12 Bressler? Remember, we don' t want to get into
. 13 a counterproductive situation here.
14 MR. B,RESSLER: Let -me state one thing .
15 in regards to Mr. Raynor' s comments . I am not
16 insensitive to the timing problem that Mr.
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17 Raynor alluded to, which is that this thing is
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is going on for quite a while and at the time it
19 was initially conceived it may very well have
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20 been conforming. Let me respectfully suggest
a.
21 the Applicant' s remedy is not before this
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22 Board for a change in the master plan or the
23 zoning ordinance map. However you care to
24 define it, his remedy is not before this Board.
25 It is not my job tonight to tell the Applicant
1
32
2 where his remedy may lie for such a change
3 in midstream, but it is my opinion, having
4 dealt with cases, that his remedy .does not
5 lie before the Board on the use variance. It
6 lies somewhere else, and I think he would be
well advised if that, as Mr. Raynor says, ZS
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his problem to pursue whatever may be available
9 to him but whatever it is, it is .not here.
10 THE CHAIRMAN: Mr. Nowachek, you have
11 something you want to say?
12 MR. NOWACH-EK: - I want to say --- I want
13 to commend, in behalf of the Association, Mr.
14 Aliano for unde."rgoing and accomplishing what
15 he did. I think it is commendable and
16 appreciated by the community and residents of
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17 the Fleets Neck Property Owners Association,
18 but I also want to. say it is an obligation of
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= 19 a landowner to keep his property in good shape
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20 and no rewards .
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21 MR. ALIANO: When you have junk cars
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22 around, sir, you can' t have them all in the
23 garage. Don't tell me what the landlord has
24 to do. You don-' t tell the tenants to put the
25 cars out on the street.
1 33
2 THE CHAIRMAN: Hearing no further
3 comments, I make a motion closing the hearing
4 and reserving decision until later.
5 MR. DOYEN: Second.
6 THE CHAIRMAN: All in favor?
7 MR. DOYEN: Aye.
8 MR. SAWICKI: Aye.
9 MR. DINIZIO: Aye.
10 THE CHAIRMAN: Thank you all for coming.
11 (Whereupon, the. within proceedings
12 were concluded)
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14 �.
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2 C E. R T I F I C A T I 0 N
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4
I, Gail Roschen, an Official Court Reporter,
5 do hereby certify that the foregoing is a true and
6 accurate transcript of ray stenographic notes taken on
7 May 30 , 1990 .
8
9
10
GAIL ROSC EN
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1 SOUTHOLD TOWN ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK . STATE OF NEW YORK 61y d
2 -------- ----------------------------- i fa4 ;;
Y}g� tt: is 1 (lt
SOUTHOLD-TOWN ZONING BOARD OF APPEALS
3 HEARING, In the Matter o f, JORDAN' S
PARTNERS
5 Applicant.
------------------------------------------X ' :.
6 53095 Main Road
P.O. Boni l l7.9' -
Southold, N6w"York
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May 30 , 1990�
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7: 55 P.M. `-'
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11 B e f o r e:
12 GERARD P. GOEHRINGER, Chairman
13 .
14 APPEALS BOARD MEMBERS:
15 CHARLES GRIGONIS, JR. - Absent
16 SERGE DOYEN, JR.
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17 JOSEPH H. SAWICKI
i8 JAMES DINIZIO, JR.
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Also Present :
20
Doreen Ferwerda
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21 Board Secretary
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23 GAIL ROSCHEN
Official Court Reporter
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25
1 2
2 THE CHAIRMAN: The last hearing is
3 in behalf of Jordan' s Partners, and this is
4 Appeal- Number 3915, and we ask Mr. Tsunis if
5 there is anything else he would like -to add
6 to his case?
7 MR. TSUNIS: Thank you, Mr. Chairman.
FO 8. John Tsunis .
9 Mr. Chairman, basically we concluded
10 our presentation at the last hearing. However,
11 there were certain questions that were brought
12 forth at that hearing, and the Chair indicated
13 that the hearing would continue to be open.
.14 So to further support our proposal and to,
15 perhaps, explain some of the questions that
16 were brought up I have some further documenta-
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17 tions for the dollar and cents proof, some
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18 legal documents as well as an appraisal showing
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19 the current value of the property by Mr.
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20 Tuccio, who is a local real estate broker on
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21 the East End here, which indicates the
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22 property if it was allowed to be developed as
23 residential lots under the current zoning
24 would be valued at $180 , 000 for the four lots.
25 That.' s ,excl,usive, Mr. Chairman, of removing
1 3
2 the existing foundation, the servicing and
3 legal costs of objections with the subdivision' s
4 approval.
5 I think if the Board will, review the
6 dollar and cents proof we have broken down
7 with bills and cancelled checks, we have
8 expended in excess of $825, 000 to date on
9 the particular parcel. So I think it is
10 quite apparent that in reviewing these docu-
11 ments, that no reasonable right of return could
12 be derived from the parcel.
13 I would just like to submit these
14 documents with a memorandum of law which,
15 again, supports our opposition.
16 THE CHAIRMAN: Thank you very much.
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17 All this is one file. This is all one.
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18 MR. TSUNIS: That is the dollar and
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19 cents proof. That is the' summary sheet on
20 top with the supporting documentation under-
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21 neath. I think there are two appraisals
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22 attached to the bottom there.
23 THE CHAIRMAN: Wonderful. Thank you.
24 MR. TSUNIS: I do not expect you are
25 going to review it today, but in your
1 4
2 deliberations.
3 THE CHAIRMAN: Okay. What I usually
4 do in a situation like this, because there
5 are assuming people in the audience that want
6 to. talk about this, I usually let them review
7 them down here but this is rather extensive.
8 Is there anybody in the audience, that.
9 is not in favor of this application, that
10 would like to review it at their leisure in
11 our office sometime and some back and comment
12 on it briefly? There is someone. Okay. So
13 bearing in mind we ask anybody that .might
14 not be available at the next hearing, if they
15 have anything they would like to say concerning
16 this application tonight, and we will recess
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17 it until the next regularly scheduled hearing,
18 just for the purpose of closing the hearing,
19 taking short brief comments from anyone after
20 they have reviewed it and we will limit the
21 hearing to five minutes . But is there anybody
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22 here tonight that may not make it at the next
23 meeting? It will be sometime in June. Yes .
24 MR. KAPELL: David Kapell, 143 Sixth
25 Street, Greenport. I 'm a businessman in the
1 5
2 Greenport Business District. I 'm also
3 Chairman of the Greenport Planning Board. In
4 that capacity I have a letter, which I would
5 like to read and enter into the record, address d
6 to the Zoning Board of Appeals, with regards
7 to the Greenport Commons variance.
8 "Gentlemen:
9 "Enclosed please find copy of a memo
10 submitted by the Planning Board of the Village
11 of Greenport to the Mayor and the Board of
12 Trustees expressing acute concern about the
13 subject variance application and further
14 requesting a joint meeting between the Village
15 Planning Board and Board of Trustees and the
16 Southold Town Board, Planning Board and
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17 Zoning Board of Appeals .
18 'We hope that you will allow such a
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= 19 meeting to take place prior to taking any
20 action on the Greenport Commons Project which
21 the Planning Board feels represents a major
22 threat to the health of the Greenport Business
23 District. "
24 That letter is signed by myself, as
25 Chairman of the Greenport Planning Board.
1 6
2 Then the memo. The memo is from the
3 Greenport Planning Board, to Mayor Hubbard and
4 the Board of Trustees.
5 "At the May 7, 1990 meeting of the
6 Greenport Planning Board a motion was made by
7 Mike Rowsom, seconded by Penny Coyle and
� 8
carried requesting that Mayor George Hubbard
9 schedule a joint meeting of the Village Board
10 of Trustees , this Board and the Southold
11 Town Board, Zoning Board and the Planning
12 Board to discuss pending development of the
13 Greenport Commons Shopping Mall to be located
14 at the corner of. Main Street and the Main
15 Road, Greenport.
16 "The Planning Board feels that this
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17 development, along with the possibility of
18 similar and larger development of the Brecknock
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19 Hall site, pose a major and potentially
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20 catastrophic threat to the future of the
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21 Greenport Business District and the Village
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22 itself. The Board requests that this meeting
23 be scheduled as quickly as possible so as to
24 occur prior to Town Zoning Board action on the
25 Greenport Commons variance request which is
1 7
2 currently pending. "
3 I would like to elaborate a little bit.
4 I believe in 1985, the Village Board contacted
5 the Town Board, and I was a member of the
6 Village Board at the time, and asked the Town
7 Board to consider acting in moratorium which
� 8
the Town Board eventually did precluding
9 development of sites, specifically this site
10 and also the Brecknock Hall site, and the
11 Town Board enacted it, all other similar
12 sites in the Town pending review of zoning of
13 these sites.
14 Subsequently, the Town enacted a master
15 plan which specifically addressed our concerns
16 which, at the time, were .that if this site and
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17 the Brecknock Hall site were allowed to be
18 developed in an intentional retail or office
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19 way, then that would result in devastation of
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20 the Greenport Business District which, as you
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21 know, already is deteriorating. You need
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22 only look to Riverhead. I can find scores of
23 other examples of small business districts that
24 have been eliminated by strip shop centers.
25 Riverhead is a perfect example. What is there
1 8
2 left of downtown Riverhead, at this point?
3 We are trying to bring one tenant here and
4 one tenant there into that morass of vacant
5 commercial spaces . It is also a result of
6 the. development that has -taken place on Route
7 58 . This is going to happen to Greenport if
8 this project is allowed to proceed in its
9 current form. This is only the beginning.
10 Brecknock Hall, there are 12 acres of
11 business zoned property, the same zone this
12 site houses. How can you deny Brecknock Hall
13 the same use if it .is approved in this case?
14 You have .two big problems . If you have any
15 regard.'for the Village of Greenport and the
16 efforts we have been making to revive our
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17 little village, you have to turn down this
18 application. There are other uses that could
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19 help this gentleman recover his investments
20 . and that can be intentional uses. I don' t
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21 want to see him hurt and I don' t think that
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22 four-lot residential subdivisions is the
23 answer, but there are alternatives. I would
24 ask you, please, to deny this application and
25 allow for the debate to take place, a discussion
1 9
2 to take place, with .the, Town Board and the
3 Town Planning Board as to what other uses
4 could take place at this site.
5 THE CHAIRMAN: I just want to mention
6 to you, since we have this application before
7 us, it would be not within our best interest
10
8 to have a meeting concerning this particular
9 application. I understand your comments , but
10 I would suggest that you correspond with the
11 Planning Board and the Town Board as quickly
12 as possible and', then, at the -last hearing on
13 this application come back and tell us exactly
14 what came out of that so that we can deal
15 with it based upon the way you want us to deal
16 with it, if that is not too much to ask.
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17 MR. KAPELL: I would be happy to do
18 that.
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19 THE CHAIRMAN° Okay. There is going
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20 to be a two, or at least a three-week period
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21 in between the hearing and the next hearing .
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22 so between tonight and the next hearing it
23 should afford you enough time, because we are
24 going into the summer season push -- whether
25 you get together with them, and let us know.
S6 —
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2 We will readvertise for this.
3 Thank you very much. I will submit
4 this for the record.
5 MR. PRESTWOOD: Hugh P. Prestwood,
6 519 First Street., Greenport. I just want to
7 point out something I thought the Board might
� 8
consider. I am opposed to this shopping
9 center also, but I want to point out that this
10 intersection is a really unusual intersection
11 as it stands right now, because ' Main Street
12 does 'not line up with the street that crosses
13 48 and the other thing that makes it very
14 unusual is that the Orient Ferry in the summer
15 drops off. huge amounts of cars that come down
16 this intersection. It' s getting to where it' s
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17 going to have to have a light because I feel
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18 like -- because of what I just said, a light
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19 is going to be a disaster. I feel the only
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20 thing that' s going to save this thing for
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21 all times is a circle in- there. I feel if this
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22 development is going up, the chance of ever
23 having a . circle in there is gone. Right now
24 there is enough land around the intersection
25 to put in a circle.
1 11
2 THE CHAIRMAN: Thank you.
3 Yes, ma' am.
4 MS. HORTON: Gail Horton. I am from
5 727 First Street, Greenport.
6 I am a resident and also the Deputy
7 Mayor of the Village. I would like to say
10
s that I support what the Chairman of the Plannin
9 Board suggested in turning down the proposal.
10. I would also . like to say that to support what
11 Hugh Prestwood said, that. is -an :.exceedingly
12 dangerous area comparable to Sunrise Highway
13 over in Southampton, by the 7-Eleven where
14 there are many near misses day in and day out,
15 and if a shopping center were put there it
16 would only heighten that activity. I would
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17 like to ask you to turn down the application,
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18 and say that I am willing to personally work
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20 less intentional use of the area. Thank you.
21 THE CHAIRMAN: Thank you very much.
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22 MS. WADE: I represent 772 people.
23 This is a petition I wanted to submit to you.
24 Randi ;made, 440 Sixth Street, Greenport.
25 We, the undersigned, are opposed to the
1 12
2 proposal construction of the shopping center
3 on State Road 25, a main street in Greenport,
4 for the following reasons:
5 1) Economic hardship in the Village
6 of Greenport.
2) Increased traffic flow in an
S already hazardous intersection.
9 3) Surrounded on three sides by
10 residential area.
11 4) The site is a gateway to Green-
12 port that joins the historic district. Any
13 proposal should be carefully considered.
14 Retail use should be rejected outright.
15 And I said 772 people signed this.
16 Actually, there is at least 70 more. Even
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17 though this is clearly a request for a change
18 of zone and not a variance, you expressed
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19 concern at the last hearing that economic
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20 hardship would be one part of your considerate n.
21 I have a sketch that shows how you could get
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22 15 residential lots on this property with
23 a park on the corner and a 50-foot buffer
24 with a . six-foot berm and evergreen plantings .
25 At 35, 000 to 40 , 000 a lot, this could be an
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2 affordable housing project and bring in
3 525, 000 to 600, 000 . This would have to be
4 coordinated with the Village of Greenport, but
5 the Village believes in affordable single-
6 family homes and the chances for success are
7 overwhelming but also could happen much more
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8 quickly than having to wade through 'the legalit
9 and.- possible lawsuits of pursuing a retail
10 development.
11 THE CHAIRMAN: Thank you.
12 MS. GWYN: My name is Milou Gwyn. I
13 live on ,South Street in Greenport. I am not
14 on a board aiid' I don' t have a petition, but
15 just from a practical standpoint I grew up
16 a little bit further west from here in Stony
17 Brook, and when I drive back and forth now
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18 on Route 25A to here it is strip mall after
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19 strip mall and they are ugly and they are not
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21 It seems terribly impractical to build
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22 more wheri .in the Village of Greenport you
23 already have the Victorian Village which is
24 vacant, the Bohack building which is vacant,
25 the Mills building is vacant. I don' t under--
1 14
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2 stand the purpose of building more stores,
3 when there are so many empty ones existing
4 already and it will just change the character
5 of Greenport.
6 I think it was a good point that it
7 is the gateway' into Greenport. The first
8 thing you see is another strip mall. I wouldn' t
9 want to, go. an�y further and see what' s inside,
1.0 because there are so many to begin with. I
11 think it would make a lovely park to be on
12 the 'corner there, from the practical stand-
13 point. I wanted to say that.
14 THE CHAIRMAN: Thank you very much.
15 MR. TSUNIS: I grew up in Port Jefferso ,
16 which is a sister community to Stony Brook.
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17 I have a 170-year-old house. I am sensitive
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18 to these items that are being discussed today,
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19 but I would also hope, and I am not here to
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20 have anybody cry out in sympathy for me, but
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21 in 1986 this parcel was zoned commercial.
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22 There comes a time where a person who makes an
23 investment in a piece of property should- be
24 able to rely on what' s going on in the local
25 town ordinances. This was before this matter
1 15
2 began, before any changes of zoning, before
3 this moratorium. If the Village of 'Greenport
4 or the Water Authority would have allowed me
5 to hook up into the water system, this project
6 would have been built a long time ago.
7 It is a not a mall. It is not a strip
8 center. It is a mixed use. It is .office
9 use, besides retail. It was approximately 50
10 percent pre-leased before we even put a shovel
11 in- the,,gr.ound. So there was obviously a need
12 for something like this. We took great pains
13 to develop 'a� structure' with a New England
14 architecture that, vaould blend into the communit .
15 It is a. gateway to Greenpo.rt. It as suggested
16 it looked or it is something similar to Sunrise
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17 Highway. I don' t know' anybody ,in the room that
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18 would want to live on Sunrise Highway, and
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19 this would be the more appropriate type of
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20 use.
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21 It appears that the Town of Southold
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P2' Building Department was mistaken for over three
•23 years, which sterilized this piece of property
24 which I. had to carry debts on, and I had to
25 pay real estate taxes on, that I could, in fact
- 1 16
2 drill a well .on this because I took the test
3 well and the water was clean and the Town of
4 Southold Building Department refused to issue
5 me a building permit as far back as 1986 .
6 I was already to commence construction on this
7 property and there could,not have been a
8 question throughout the Town, that it would
9 have been able and' it would have been a per--
10 mitted . thing to do. But-three years of
11 sterilization has• 'certainyly been a financial
12 burden upon mys'e1f ' and, my family and carrying
13 this property.
14 The Board. of Health directed the Town
15 of Southold Building Department to issue a
16 building permit based on the fact that I could.
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17 drill a well if, in fact, municipal water
18 was not available.. Unbeknownst to be,
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19 subsequent to the issuance of the building
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20 permit, a stop work order was issued five or
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21 ' six months after the building permit was
22 issued; that, in fact, the property was
23 rezoned.
24 I would like to say that I believe I
25 have come here with clean hands. I did not
7—
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2 try to put anything over anybody. I have
3 spent four years of time on this particular
4 project. I tried to make it look nice, some-
5 thing that my kids could be proud of. If
6 anybody saw the rendering, I think it is one
7 of the nicest retail an office complexes one
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8 could have next to- them. It is on, if you want
9 to call it, a busy intersection. For Southold
10 it probably is a busy intersection, but in
11 my opinion as a developer. for 15 years, as
12 a real estate attorney, this would be much
13 more appropriate than a residential development
14 I certainly would not want to live on that
15 corner. I appreciate the fact that some people
16 down in Greenport may be adversely affected
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17 as far, as the commercial aspect is concerned.
18 There will be a brand new shopping
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19 center, brand new office in there --- have in
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20 excess of 200 parking spots which Greenport
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21 drastically needs but, my God, for three years
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22 I have been up against the wall and not been
23 able to develop my property as the codes and
24 as the law would have permitted me to do and,
25 again, this is the avenue that was open to me
1
18
? to come in and seek relief.
3 If affordable housing is what the
4 community wants, I will be happy to deed it
5 over to anybody that wants to take it for
6 the dollars and cents I have got into it. I
don' t want a profit. I don' t want to make
$ enemies . I am not the developer in Suffolk
9 County that is coming in to Boards like this
10 and asking for relief to enhance what he has.
11 All I am trying to do at this juncture is to .
12 :do what •I was permitted to do, but some
13 burPaucratic. mess stonewalled me. I mean, I
14 have really been stopped cold. I don' t know
15 if the pressure came from the Village, the Town
16 or from the 'peoIple ` 'I don' t know where. it
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17 came from, but I was stopped dead in my tracks
18 for no reason. I am here $826 , 000 later, and
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19 this plea to the Board is to ask for relief
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20 . that I think. I' justly deserve. I am not here
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21 to hurt anybody, but $826 , 000 is devastating.
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22 THE' CHAIRMAN: Let me ask you this
23 question. In the past, having been on the
24 Board for 10 years, we did, Mr. Tsunis, in
25 the past recess these hearings and we asked
1
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2 people to go out in the hall and speak to
3 each other and come back and agree on certain
4 things, and to see if we can live up to the
5 things that they want to agree to, and so on
6 and so. forth. Do you think it would behoove
you, at this point, in meeting with the
8 officials of the Village of Greenport?
9 MR. TSUNIS: Mr. Chairman, I don' t
10 mean to interrupt. I don' t want to delay
11 the decision on the application but let me
12 say this, if I may. I am not here to blow
13 my horn either, but when I was in law school
14 I worked for a man by the name of Robert
15 Anderson (phonetic) . He is a present authority
16 on zoning in the United States. I was his
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17 assistant. .I have been doing zoning work,
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18 zoning litigation, for 15 years. My God,
= 19 if there was ever a case that screamed out
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20 for relief -- $826, 000 of cash spent out, and
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21 you are telling me now it is only worth
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22 $180 , 000 -- this is it. You have approved
23 maybe five uses for variance in 15 years. This
24 is Number 6. It has got to be. Legally a
25 15-page memorandum of law supports me every
1 20
2 inch of the way, but again I am not here to
3 hurt anybody. But, my God', I don' t want to
4 be hurt either. It is just not fair. Four
5 years of a struggle out here, and quite
6 frankly, I feel like I am an outsider. I
7 live in Suffolk County but I am from the
8
wrong town. I say this with all sincerity,
9 but every time I came to the Board meetings
10 or the Board hearings I was booed or shoved
11 over. "You' re on the list, " this and that,
12 and it is four years of expenses, legal
13 expenses, brokers ,or traffic experts, surveyors
14 engineers or architects, leasings. I signed
15 leases , for Christ - sake, based upon the
16 zoning. I mean I don' t know. There comes a
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17 time that you have to rely on building permits,
18 on . site .plans, on. Board'. of• Health approving.
19 My God, I can' t believe I couldn' t get water.
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20 I mean municipal water. I couldn' t drill a
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21 well on my own property to get water. It is
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22 really getting on the verge of Gestapo tactics
23 to an outsider. I mean it is my own personal
24 feelings and it may be to my detriment, but
25 that is how I firmly feel. I really went into
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2 a coverage of lions out there.
3
I met: with this gentleman from the
4
Planning Board. I met with the Mayor. I ' ll
5 meet with anybody else out here, if there
6 would be an economic resolution where I could
7 leave here with my dignity and my investment
10
8 that I dumped into Southold. I ' ll leave with
9, my head held high, and hoping that I could be
10 part .of. a .community effort that if it is low
11 income housing you want, low income housing
. 12 you need, I think that' s a townwide situation
13 and a townwide matter that should be supported
14 by the entire municipality as far as the Town
15 of Southold and the Village of . Greenport. It
16 should not .be dumped in my lap. It should not,
17 and I., will be happy. to expedite any kind of
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is agreement I can work out with any jurisdiction
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20 my God, don' t hold up the decision because I
21 earnestly feel as an attorney and an applicant
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22 that I am right.
23 THE CHAIRMAN: Okay. I understand that.
24 I have to recess until the end of June, anyway.
25 MR. TSUNIS: I appreciate that. I
1 22
2 understand.
3 THE CHAIRMAN: Maybe sometime in that
4 period you can meet with these people.
5 MR. TSUNIS: I will be willing to meet
6 with anybody.
7 THE CHAIRMAN:. This is not something
8 we have done in the past two years, only
9 because it just has not been the philosophy
10 or the time has not been right to do it, but
11 maybe this is the case.
12 . Thank you so much, Mr. Tsunis, for
13 your opinion.
14 MS. HAAN: Susan Haan. I 'm a business
15 owner on Front Street, a partner of Front
16 Street Garden. I 've worked in the commercial
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17 district for the last 10 years in Greenport.
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18 I just took' a quick walk through Greenport
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19 today. This morning I. counted close to 40
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20 vacancies of commercial and professional
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21 spaces in the downtown commercial district.
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22 I also drove past Southold Square, which is
23 a shopping center less than five minutes away
24 from the proposed center, which appears to
25 have a vacancy rate of 50 percent. I don' t
1 23
2 feel that another shopping center, retail and
3 professional center, is warranted. I feel it
4 would be economically disastrous and
5 aesthetically detrimental to Greenport.
6 MR. KAPELL: Dave Kapell. I certainly,
7 for one, would be more than happy to meet with
� 8
Mr. Tsunis and discuss any alternatives that
9 would grant him a reasonable return on his
1.0 investment and, also, address the concerns of
11 the Greenport Business District.
12 THE CHAIRMAN: Would you give him your
13 telephone number, Mr. Tsunis?
14 MR. TSUNIS: Yes .
15 MR. KAPELL: We are powerless of the
16 jurisdiction. We have no zoning jurisdiction
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17 over the, site. I 'm here. to voice our concern
a 18 about the Town issues .
19 MR. TSUNIS° Mr. Chairman, I would be
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20 happy to meet with' the gentleman.. What he
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21 is saying now is quite correct, and it is
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22 going to be a lot of verbiage over nothing.
23 Unless we get a municipal officer that not
24 necessarily has the power to make a decision,
25 but it would have to be a legislative action
1 24
2 and I think the Supervisor and perhaps the
3 Mayor of Greenport or the people.
4 THE CHAIRMAN: You have the Deputy
5 Mayor here.
6 MR. KAPELL: IE I can state that I
7 think if we can choose to hold the meeting you
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8 suggested with the Village Board and the Town
9 Board, other than this Board, I think Mr.
10 Tsunis can attend and see if we can work some-
11 thing out. I am wide open. I am in business.
12 I don' t want to see anybody lose money. It is
13 not good for the area. It is not good for
14 anybody, but this use is a disaster for Green-
15 port.
16 MR. TSUNIS: In all due respect, again,
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17 I feel for you as a businessman but that is
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18 not germane to the issue at hand. What this
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19 lady said tonight has no significance to this
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20 application. Forty stores in Greenport has
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21 no relevance to this application, because this
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22 is an, economic environment, survival of the
23 fittest, to be blunt about it. I had a 40
24 percent pre-lease. I had a letter of intent
25 for 13 , 000 square feet from a national company.
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2 So whether I put 29 , 000 feet and. have maybe
3 60' percent occupancy, or I build just 15
4 or 20 , 000 and had .10.0 percent occupancy would
5 be up to the landowner. It would be my
6 risk, but -there is something very unique about
7 this parcel. It is a highway type of
8 location and it would have something no place
9 on the North Fork has. It has a parking-
10 lot. It has a parking lot, and that is very:
11 important to a successful retailing or a
12 successful professional office. so this
13 is a unique location, and I should not be
14 penalized because another area of the North
15 Fork doesn' t have parking. I should not be
16 penalized because there is a 150-year-old
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17 building in the congested downtown municipalit
18 that may have fire codes or whatever, or
19 stairs, not first floor access that' s vacant,
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20 and I am committed. . I mean it is a very
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21 different situation. It is not apples with
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22 apples.
23 MR. KAPELL: I just want to make one
24 observation, which is that the discussions
25 around the facts is that the Town Board in
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2 review of the master plan discussed and
3 accepted a different zoning from the one you
4 have. I don' t know how you got a building
5 permit for it.
6 MR. TSUNIS: It was a mistake.
7 MR. KAPELL: All I know is that the
Town. Board had notorious hearings and debates
9 around this property, as I stated earlier,
10 dating back to 1985, prior to your ownership.
11 The fact you were not aware of it is, I don' t
12 think, a burden the Village should be forced
13 to bear.
14 MR. TSUNIS: In ' 86 I was denied water.
15 I was denied, allowing me to put a well there
16 which I could have built it. That is my only
17 problem. Forget that I never got a notice
18 in Hauppauge.
= 19 THE CHAIRMAN: Let' s hold up, and go
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20 on to Mr. Flynn.
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21 MR." FLYNN: I am F.M. Flynn of Southold.
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22 I would merely like to clarify something in
23 my own mind. . Is all discussion on this matter
24 to be delayed until subsequent meetings in
25 June, or is the discussion only to be delayed
1 27
2 with relation to this dollar and cents proof
3 submitted tonight?
4 THE CHAIRMAN° Mr. Flynn, it is the
5 purpose of this Board, as the courtesy has
6 been afforded you in the past on another matter
7 the' case that is something that could not be
8 disseminated as quickly as this , and appraisals
.9 and so on and so forth, we like to afford
10 everybody in the audience the right to look
11 this over at their leisure in our office.
12 So to limit it to the dollar and cents situation
13 tonight, it would be unkind for me to say that
14 or concur with what you are saying. What we
15 are basically doing is asking anybody in the
16 community that would like to review the file
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17 to come in and do so, and then we can wrap it
18 up at the end. It is not for any one particular
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19 issue, but ' that there are many people in the
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20 community that have not actually reviewed the
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21 file, and we are constantly gathering more
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22 data.
23 MR. FLYNN: What I- am asking, in effect,
24 is other commentary on this matter appropriate
25 tonight or will it be deferred to at the June
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2 meeting?
3 THE CHAIRMAN° Is is entirely up to
4 you, if you would like to say something tonight
5 MR. FLYNN: I have -remarks I would like
6 to- make.
7 What -is actually sought by the applicant
8 in the guise of a variance, is a rezoning from
9 Residential-Office use to Business use.
10 Zoning and rezoning is a legislative
11 function and, as such, is the prerogative, solely,
12 of the Town Board.
13 Zoning texts including. Robert M.
14 Anderson' s New York Zoning Law and Practice
15 refer to Boards of Appeals as "escape valves"
16 which were created to relieve the Town Boards
17 of the burden of dealing with minor changes
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18 in zoning requirements.
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19 The powers of the Board of Appeals are
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20 limited and circumscribed.
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21 As I have informed this Board on several
22 occasions , the New York State Enabling Act
23 for. .Town Zoning states that the granting of
24 variances is to be "sparingly exercised in
25 rare .; circumstances. " '
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2 The Southold Town Code permits the
3 . Board of Appeals to vary the strict letter of
4 its regulations if the sp
irit pirit of the regu-
5 lations is observed, public welfare and safety
6 secured and substantial justice done.
7 Changing a zone hardly constitutes
8 varying the strict letter of the Code. It
9 would constitute a complete repudiation of
10 the Zoning Code, both in letter and in spirit.
11 The spirit of the law is not subject to
12 interpretation when the. law, itself, is
13 explicit.
14 The variance sought constitutes far more
15 than varying the spirit of the ordinance. The
16 Appellate Division has ruled that:
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17 "A .use variance, as the term implies,
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18 is one which permits a use of land which is
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19 proscribed by the zoning regulations.
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20 (Emphasis suppliod)
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21 The Southold Town Board, after pre-
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22 sumably due deliberation, adopted a compre-
23 hensive, or master plan, placing the subject
24 property in .an RO District. The stated purpose
25 was- to provide a transitional area between
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2 business ares and low-density residential
3 development along major roads which will
4 provide opportunity for limited non-residential
5 uses in essentially residential areas.
6 This constitutes a legislative enact-
7 ment. If it is to be challenged, it must be
8 by means of an application for change of
9 zoning before the Town Board. The Applicant
10 also has the option of seeking a legal deter-
11 mination of the legality of the comprehensive
12 plan.
13 The very fact that this hearing is
14 being held represents, in my opinion, an
15 improper attempt to exploit the "escape valve"
16 function of the Board of Appeals. The Town
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17 Board, as elected officials, would be shirking
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18 its responsibility to defend its action in
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19 adopting the recent comprehensive plan. It
° 20 would constitute the delegation to unelected
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21 officials of the power to effectively change
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22 zoning, a function reserved to the Town Board
23 as a legislative body.
24 I believe there is no legal basis for
25 the Board of Appeals to grant this variance.
1 31
2 Despite this position, I would like to
3 call to the Board' s attention certain aspects
4 of this application which, I believe has
5 bearing on this entire matter.
6 As I understand it, the chronology of
7 events pertaining to the property is as
� 8
follows :
9 1) Applicant purchased property to
10 deed dated 2/18/88 and recorded in Liber 10549
11 Cp. 324. Purported consideration was approxi-
12 mately '$393 ,500 . Subsequent deed to Jordan' s
13 Partners, et al, was intra-core with no
14 consideration.
15 2) Property was appraised.
16 3) Site plan approval had been
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17 obtained for a shopping center.
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18 4) A Building Permit was issued to
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19 construct an office and retail shopping
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° 20 center on June 8 , 1989 .
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21 5) Property was cleared and con-
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22 struction of a foundation started.
23 6) A Stop Work Order was issued by
24 the Building Department on ll/30/89 based upon
25 the permit having been issued in error.
1 32
2 7) Owner filed subject Appeal Number
3 3915 .
4 As to the Stop Work Order, I believe
5 there. is ample legal justification for such
6 orders when a permit is issued in error.
7 It is also my opinion ..-that the adoption
8 of the comprehensive plan placing the property
9 in a 'different zoning district abrogated any
10 previously approved site plan.
11 I would like now to bring to the
.12 Board' s attention certain matters pertaining
13 to this application which necessitates further
14 investigation and deliberation.
15 1) The deed into the owners, deeded
16 2/18/88 does not, in -my opinion, constitute
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17 an arm' s length market conveyance. At least
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18 one of the grantors is also a grantee. It
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19 is purported consideration is not evidence
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20 of market value. Subsequent conveyance was
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21 intra-corporate.
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22 2) On 4/12/87 a Certificate of
23 Incorporation was. issued to Jordan' s Park
24 Place, Ltd. , authorizing the issuance of
25 200 shares of stock. I believe the Board
1 33
2 should determine if this corporation is still
3 extant and if any of the principals of Jordan' s
4 Park, Ltd. or Jordan' s Partners are both
5 grantors and grantees.
6 3) My research indicated that the
7 only arm' s length conveyance of the subject
10
8 property was by the Grand Union Company by
9 deed dated 4/2/82 and recorded in Liber 9185 ,
10 Cp. 438. Indicated consideration was
11 $103, 000 .
12 4) There was an interim conveyance
13 of the one-third interest in the property by
14 a deed dated 7/14/86 and recorded in Liber
15 10080 , Cp. 537 . Consideration was $80 , 000 .
16 5) It has been stated that an
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17 appraisal was made of the property. Was this
18 appraisal made prior to purchase, or pursuant
19 to a mortgage application? What value was
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20 ascribed to the land?
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21 6) On 2/18/88 , coincident with the
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22 date of the deed, owner obtained a con-
23 struction loan mortgage from the Suffolk County
24 National Bank in the amount of $440 , 000 .
25 Mortgage is recorded in Liber 13587 , Mp. 131.
• r I [ J
1 34
2 Mortgage is based on a percentage of
3 the total value ascribed, land value included.
4 Land value represents only a fraction of
5 total value.. In my- opinion, the Board would
6 be well advised to investigate the circum-
7 stances of this mortgage.
8 Particularly important is a clause in
9 the mortgage, and I quote:
10 "This mortgage covers property presently
11 improved or to be improved by one or more
12 structures containing in the aggregate not
13 more than six residential dwelling units , each
14 having their own separate cooking facilities. "
15 This hardly coincides with the sub-
16 sequent application to build an office and
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17 retail shopping center. It appears from this
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18 clause that both the owners and the mortgagee
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19 agreed in 1988 that the highest and best use
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20 of the property was for residential purposes .
21 The mortgagee granted the loan for this
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22 purpose.
23 This would also appear to cast doubt
24 on the contention that the owners were
25 ignorant of the proposed zoning changes
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2 published in January of 1984. and 1987
3 respectively. It is difficult to believe that
4 astute• owners. grid investors, some of whom had
5 owned the property since 1982, and others
6 who had purchased an interest in 1986 , would
be unaware of the proposed zoning change, or
8 of 'the actual zoning change when the Building
9 Permit was applied for in 1989 . The owners
10 should have had actual or constructive
11 knowledge, had they exercised reasonable
12 diligence.
13 Mention has been made by others of
14 concerns with traffic volume and the public
15 health safety and welfare. I would like to
16 add that in my experience as a consultant
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17 to the Department - of Transportation, it was
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18 the Department' s policy to restrict access to
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19 a property° s frontage in both directions from
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20 the point of convergence of two State highways.
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21 This is another area which should be investi-
22 gated.
23 In conclusion, it is incumbent on an
24 Applicant to submit supportable and persuasive
25 proof of hardship. Hardship is interpreted as
1 36
2 financial hardship and "dollars and cents"
3 proof must be submitted
4 Now, since writing this, I have become
5 aware of the submission to the Board and I
6 would like to have the opportunity to review
7 this purported proof.
� 8
-I would state that, the casual statement
9 of the. real estate broker as to the value of
10 the property as presently zoned, unsupported
11 by a market data analysis, hardly constitutes
. 12 persuasive proof.
13 Further, no attempt was made to establis
14 the market value of the property as previously
15 zoned.
16 The Court of Appeals has held:
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17 "Once it has been demonstrated that
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18 some legitimate public interest will be served
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19 by the restriction, then, before the property
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20 owner can succeed in an attack on the ordinance
21 as applied, he must demonstrate that hardship
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22 caused is such as to deprive him of any use
23 of the property to which it, is reasonably
24 adapted, and that, as a result, -the ordinance
25 amounts to the taking of the property.
1 37
2 Applicant did not cite practical
3 difficulties as a basis for the variance sought
4 That concludes this, and I can give
5 you a, 1copy.
6 THE CHAIRMAN: Thank you.
7 MR. TSUNIS: Briefly, the only item
� 8
I would like to address, because I think the
9 package addresses everything else, I am not
10 aware of. the provision in the mortgage that
11 Mr. Flynn alluded to.
12 MR. FLYNN: It is here if you would
13 like to see it.
14 MR. TSUNIS: I did check my copy. It
15 was never contemplated by myself or the
16 financial institution that this parcel -- it
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17 was never contemplated to develop the parcel
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18 as a residential development. If it is, indeed
19 in the mortgage document, if it is in the
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20 boilerplate, I don' t know if the boilerplate
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21 or the rider -- if it is in the mortgage
22 document -- it was a mi's+?ake on both parties '
23 part and I would get an affidavit from the
24 lending institution attesting to that. I
25 will submit that at the next hearing.
1
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2 MR. FLYNN: It is not a boilerplate.
3 It is a handwritten rider to the mortgage,
4 initially.
-5 THE CHAIRMAN:• , Thank you.
6 Hearing no ` further comments, we will
recess this;.,hearin to'' the ,next scheduled
m 8 .
meeting, which will be during the latter part
9 of June. We thank you gentlemen .for your
10 courtesy.
11 If there is anybody that would: like
12 to review the application, you are welcome to
13 between the hours of 9: 00 and 5: 00 on a daily
14 basis, five days a week, and please come in
15 ad if you have some time sit down and discuss
16 it.
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17 We thank you, Mr. Tsunis.
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18 (Time noted: 9 : 10 p.m. )
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2 C E R T I F I CA T I O N
3
4 I, Gail Roschen, an Official Court Reporter,
5 do hereby certify that the foregoing is a true and
6 accurate transcript o•f. my stenographic notes taken on
7 May 30 , 1990.
8
9
10
AIL ROSCHEN
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