HomeMy WebLinkAboutZBA-11/29/1990 HEARING 1
1 STATE OF NEW YORIN - COUNTY OF SUFFOIK
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3 BOARD OF APPEALS . TO1,11T OF SOUi'HOLD.
4 REGULAR MEETING
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8 Town Hall
53095 Main Road
9 Sout lb-! (�, New York 11.971
10 November L 9 , 1990
8 . 05 P..m.
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15 B E F 0 R E:
16 GE .A ,D P . GOE]IRINGER,
Hearing Officer
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RAM Court Reporting Service
633 East Main St., Riverhead,N.Y., 11901(516)727•31"
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A P P E A R A N C E S :
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Charles Grigonis, Jr.
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Serge Doyen, Jr.
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James Dinizio, Jr.
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Linda Kowalski
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25 000
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633 East Main St., Riverhead, N.Y., 11901 (516)727.3168
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HEARING OFFICER: We will reopen the
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Copin Hearing, 3977.
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I ask Mr. Meyerhoefer if there is
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something he would like to add for the record?
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MR. MEYERHOEFER: Well, the neighbor
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had a hardship and there is nothing I ;could
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like to add to the record, just that their
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property is resolved and looking at the re-
10 zoning where we are going to place our garage
11 would be in line with the back yard of their
12 property. It wouldn' t be on a front yard
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basis with there property. I can' t really
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see any hardship.
15 Thank you.
16 HEARING OFFICER: Thank you.
17 Is there anybody else that would like
18 to speak in favor of this application or like
19 to speak against the application?
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MS . ONGIONI : .':Yes.
21 I just have a few additional comments to
22 make. My presentation covered most of the
23 points last month and you have the memorandum
24 in your file.
25 I would just like to reiterate that the
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Zoning, Board to grant an area variance,
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practical difficulties should be proven by
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the applicant and I would submit to you that
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the applicant has not proven practical
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difficulties . The Courts have set forth
what the criteria are for practical difficulties
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and it sets forth in the memorandum that the
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applicant has not established that there are
10 practical difficulties here. First of all,
11 there are alternate locations on the property
12 for this The
garage. garage could be cut down
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in size to conform to the code. In addition,
14 this is a self-created hardship because about
15 12 or 13 years ago the applicant subdivided
16 a much larger lot. If that subdivision had
17 not taken place, there would be more than
18 ample space on this lot for the location of
19 the garage and in balancing all of the tests
20 set forth .by the court in deciding whether or
21 not an area variance is appropriate, I think
22 that the Board' s finding can only be that the
23 practical difficulties that are required are
24 not set forth in this application.
25 HEARING OFFICER: I want to ask you a question,
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but go ahead, complete your presentation.
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CIS . ONGIONI : That is all I have to say
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at this time because the law and the facts
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are adequately set forth in the memo.
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HEARING OFFICER: You are objecting to
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the garage in.'.totdl being placed in the side
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yard and it being placed within ten feet of
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the property line?
10 MS . ONGIONI : My client objects to
11 it being placed so that it is only this
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distance from the lot line. It is my client' s
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intention that the garage could be located
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elsewhere so that a variance would not be
15 required.
16 HEARING OFFICER: My only problem is that
17 if we were to move it farther back, we might
18 be closer to the pond and therefore requiring
19 a variance from freshwater.
20 MS . ONGIONI : You might be able to move
21 it closer to the house so that it would be
22 within the side yard requirement and still not
23 be too close to the pond.
24 HEARING OFFICER: That is basically what
25 the nature of my question was. Are you
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concerned about both being the side yard and
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the footage from the property line or is it
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just --
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MS . ONGIONI : It is the footage from the
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property line.
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HEARING OFFICER: Thank you very much. -
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Is there anything you would like to add
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to that, Kurt?
10 MR. MEYERHOEFER: The only reason for
11 filing a variance was because the law was
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changed a month prior to the garage going up.
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The garage had b.een ..p.ur.chased. I had come
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down here to the building department to inquire
15 about any law changes and I was told there .
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were not. I also had a contractor who wasn' t
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aware of the law. That' s the only reason for
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the variance. Otherwise we could have put it
19 five feet from the property line and not had
20 it at all.
21 The other thing, there is a tree that is
22 rare on the east coast. If it wasn' t a rare
23 tree, I would chop it down. It' s rare and
24 it' s 25 some years old. It happens to be
25 a California Redwood.
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HEARING OFFICER: That is the one that
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is indicated in red?
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MR. MEYERHOEFER: Yes.
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HEARING OFFICER: I will tell you what, I
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have -,viewed this property a month ago from the
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road. I did not come on site, but I will be
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down either this weekend or next weekend at
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a reasonable time. It will be in the morning
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on Saturday.
11 MR. MEYERHOEFER: You are more than
12 welcome.
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HEARING OFFICER: I will knock on the
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door and indicate my presence.
15 MR. MEYERHOEFER: I have it staked out.
16 HEARING OFFICER: I did see the stakes
17 at the time from the road. As I said, I did
18 not enter the property other than standing by
19 an extension on the road.
20 MS . ONGIONI : Mrs. Cassity would like to
21 say a few words.
22 MRS . CASSITY: I am Marie Cassity and what
23 I ' d like to say is that the Planning Board
24 denied the building of the garage and the Redwood
25 tree that is being referred to was a promotion
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thing given by Fleet Lumber, 25 years ago and
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planted. It isn't anything of sentimental
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value, I should think, and it would just ruin
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the whole architecture of the surroundings
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and another question is how would they
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approach the garage and what would be the
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exit.
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HEARING OFFICER: We had originally
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asked that question of Mr. Meyerhoefer. Let
11 me ask that again.
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We were talking about placing the doors
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towards the road; is that correct?
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MR. MEYERHOEFER: Right.
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HEARING OFFICER: You were talking at that
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time not taking the stanchion down by utilizing
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the existing driveway and transversing the
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front lawn?
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MR. MEYERHOEFER: Right. Coming right
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across up the front.
21 HEARING OFFICER: I 'm sorry. To answer
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your question --
23 MRS . CASSITY: I mean, right now there
24 is no approach. There is a guard rail.
25 HEARING OFFICER: They would not be taking
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that down.
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MRS . CASSITY: Oh, they wouldn' t?
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HEARING OFFICER: No.
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MRS . CASSITY: Then how would they get
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in there?
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HEARING OFFICER: Utilizing the existing
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driveway going across the front lawn around
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the corner of the house.
10 MRS . CASSITY: You mean on the driveway
11 they have now?
12 HEARING OFFICER: Entering on that
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driveway, making the left, going around the
14 house entering the garage. Having the doors
15 face the road.
16 MRS . CASSITY: I see, but there is no
17 right of way on my property.
18 HEARING OFFICER: No, not at all.
19 MRS . CASSITY: I just want that understood.
20 HEARING OFFICER: Sure.
21 MRS . CASSITY: Thank you.
22 HEARING OFFICER: I make a motion to close
23 the hearing and reserve the decision. All those
24 in favor say aye.
25 BOARD MEMBERS : Aye.
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HEARING OFFICER: We will do a reinspection
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for the decision.
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Thank you again for coming.
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(Whereupon, the above-mentioned hearing
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concluded at 8 :15 P .M. and a brief recess
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was taken.)
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(Whereupon, after recess at 8 : 30 P .M. ,
11 another Hearing commenced. )
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HEARING OFFICER: There is an appeal
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on behalf of Janet Maloney, Appeal Number 3983 .
15 I have a copy of a sketch of a survey
16 reduced by Roderick Vantile, dated February 11,
17 1972 , indicating a one and a half story frame
18 home approximately ten feet from the north
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easterly property line and 33 feet, 7 inches
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from the bulk head, which is the ordinary
21 water mark. The nature of this application
22 is a 14 foot, 8 inch deck by approximately
23 31 feet, approximately 33 feet from the bulk
24 head and I have a copy of the Suffolk County
25 Tax Map indicating this and adjoining property
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in the area.
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Is there someone that%-would.. like" to be
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heard?
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MR. MULCAHEY: Would you state your name
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for the record?
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MR. MULCAHEY: Donald Mulcahey. I am the
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attorney for the applicant, Janet Maloney.
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I am available for any questions you may have
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with respect to this application.
11 However, I would first like to know that
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the deck, which we seek a variance this evening,
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was constructed in 1981, so the deck is
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approximately nine years old. My client just
15 recently sold the property and we are obligated,
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at this time, to provide the new owner with a
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Certificate of Occupancy, otherwise we would
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suffer a financial hardship.
19 For your information, I have already
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received a letter of nonjurisdiction from the
21 DEC as well as a waiver from the Town of
22 Trustees. I would like to request at this
23 point in time your approval of this variance.
24 HEARING OFFICER: I want to ask you;. is
25 -there any indication tha�'..:this. .deck ..will: be
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3 MR. MULCAHEY: Not to my knowledge.
4 HEARING OFFICER: That would be the
5 restriction from the Board if the variance
6 was so granted.
7 Thank you very much. That is the only
8 question I have.
9 - MR. MULCAHEY: Thank you.
10 HEARING OFFICER: Is there anybody
11 else that would like to speak in favor of
12 this application?
13 Is there anybody who would like to speak
14 against the application?
15 Are there any questions from Board members?
16 If there are no further questions , I will
17 make the motion to close the hearing reserving
18 the decision until later.
19 All those in favor say aye .'
20 BOARD MEMBERS : Aye.
21 HEARING OFFICER: Thank you very much
22 for coming in.
23 Next we have an appeal on behalf of
24 Phyllis Rayne Byer, Number 3981. I have a
25 copy of the survey dated June 18 , 1976 on behalf
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of _Vantide. . P.C. indicating a lot area
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of approximately 10 ,510 square feet and
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I have a copy of a Suffolk County Tax Map
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indicating that an adjoining property in the
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area.
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Is Mrs. Byer present?
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She has asked for a postponement of this
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Hearing. Is there anybody that would like
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to say anything concerning this application
11 that might not be here for the January meeting?
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Seeing there are no hands, I will make
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a motion to recess this Hearing for the next
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regularly scheduled date.
15 All those in favor say aye.
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BOARD MEMBERS : Aye.
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HEARING OFFICER: We will take a recess .
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(Whereupon, the above-mentioned -hearing
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c.onc.luded a,t .8.:4.0 P .M. - and a brief recess
21 was taken. )
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(Whereupon, after recess at 8 :45 P .M. ,
24 another Hearing commenced.
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(Continued on the next page. )
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HEARING OFFICER: The next appeal we have
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is on behalf of John and Rose Milazzo, Number
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3973 .
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I have a copy of the survey and a site
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plan. The survey was produced by Roderick
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Vantile, P.C. It is dated October 27 , 1988
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and indicates a one-story framed dwelling on
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a variable -- actually, it is a four sided
10 piece of property, approximately. We will
11 refer , to it as an irregular piece of property
12 and we have a copy of the Suffolk County Tax
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Map indicating this and surrounding properties
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in the area.
15 Would you state your name for the record?
16 MR. MAZZOLA: Mr. Lewis Mazzola, for
17 the applicants , Rose and John Milazzo.
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As I indicated, the applicant proposes
19 to remodel and add an addition to the existing
20 dwelling which you see on the site plan which
21 consists of a 512 square feet building, which
22 is obsolete. It' s smaller than what would
23 be required as a minimum for a building today.
24 The lot is an irregular lot with a 33 feet
25 frontage and tapering down to the creek and
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633 East Alain St., Riverhead, N.Y., 11901 (516)727.3168
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at its widest point, is about 62 feet.
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The applicant currently uses that
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residence as a summer residence only. It
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is not heated and it is inadequate for the
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size of the applicant' s family. The applicants
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have four children. They are unable to use
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the premises as they now exist. They are not
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able to all come out to the summer residence
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all at one time. In addition, it is the
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applicants plan to use this residence as a
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retirement home eventually and it will be
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winterized and will eventually be more
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efficient heatwise than it is at this time.
15 It is -the smallest structure in the community.
16 The increase in the size wouldn' t be inconsistent
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with the size of the surrounding structures.
18 It will increase the value of the neighborhood
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in general and in its present state, conventional
20 financing is unavailable for a building of
21 this sort. As you indicated, this plot has
22 unique physical conditions. It is irregular
23 and it gives rise to practical difficulties
24 in complying with the area provisions for
25 zoning. My client has obtained a negative
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declaration from the Board of Trustees and
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also has obtained the DEC approval for the
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construction and at this point, I would like
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to offer to the Board an affidavit prepared
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by John Breslin, a licensed appraiser who has
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looked at the projierty and has an affidavit
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which I am going to hand to the Board at this
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time.
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In addition to the negative declaration
11 from the Board of Trustees , the DEC approval
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of the building permit and a letter from
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Paul J. Heffernan, a local real estate broker
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who lives in this area. Finally, I have a
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photograph of the existing structure taken
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from across the creek which I would like to
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offer to the Board and at this time I am
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going to pass that information up to the Board
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and introduce Mr. Sal Caradona who is the
20 architect who prepared the site plans and
21 the building -plans.
22 I asked Mr. Caradona to come up right
23 now and tell the Board what he has .
24 MR. CARADONA: Sal Caradona. What I
25 have is a model of the adjoining sites and of
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the building itself. I think it would be
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appropriate at this time if we brought this
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forward. I think it would clear up most
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of the problem.
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This is a little show and tell. This
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represents the regular lot as it now stands
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and what we are producing is a structure that
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would be this configuration. The way the
10 house is presently situated is this
11 configuration. I believe this is the
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Baldwin' s residence. This is Casamasina and
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this is the Milazzo ' s residence.
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The reason why I went through this
15 elaborate display here is to show that the
16 lot itself, being irregular as it is , is
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almost impossible to put a .home_ .on:.it .that
18 conforms to the zoning resolutions and so
19 what I tried to do was put on this lot a
20 building that would just serve the Milazzo ' s
21 needs and not be any larger than it had to be.
22 In addition to that, I felt that the structure
23 itself has a sense of play. It isn' t overly
24 bearing. It has a sense of sure and in keeping
25 with the residences that surround it, it is not
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imposing or not an encumbrance on anybody' s
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views or anything of that nature.
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In that regard, I was wondering if you
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had any questions that I might help you with
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with reference to this?
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HEARING OFFICER: Mr. Caradona, we come
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back to the same problem that we have with
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waterfront lots and that is , again, I ' ll
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mention and I am not speaking for my colleagues .
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Some of them have been here for 35 years , but
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we are all firemen. Our concern is access to
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at least three sides of the house based on
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fire access and we must have access and it
15 is not within the jurisdiction of my Fire
16 District and not with Mattituck. To my left
17 is Mr. Grigonis and he is from the Southold
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Fire District and Mr. Dinizio is with the
19 Greenport Fire District. we have to have a
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minimum of eight feet. I notice that on the
21 one side you have 5 . 7 . I believe their code
22 calls for ten. I would not be in favor of
23 this application unless I can see at least
24 eight feet on that side which would mean you
25 would have to cut the house down.
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MR. CARADONA: We will cut the house down
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or move it over. Again, the house is designed
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around the needs of the Milazzo' s and their
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children. As a matter of fact, there are
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three bedrooms in all and you know at the
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present time as it stands , it' s smaller than
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they would have like it.
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HEARING OFFICER: What is the actual
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increase in square footage?
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MR. MAZZOLA: It is 512 to 2 , 034 . It' s
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approximately a 1500 square foot increase.
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HEARING OFFICER: It is two floors?
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MR. CARADONA: Yes .
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HEARING OFFICER: Your anticipation would
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be to move it over closer to the :southeast?
17 MR. CARADONA: Exactly. Just slide it
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over and that actually would be one or 2 .3
19 feet.
20 HEARING OFFICER: The approximate width
21 of the house is what? It is like 26?
22 MR. CARADONA: Yes.
23 MR. MAZZOLA: I would like to address
24 myself to one other point. I have a letter
25 here from Mr. McLaughlin who represents an
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adjoining owner to the immediate north, the
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Baldwin' s . and I would only like to address
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myself to the last paragraph of the letter
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which he indicates that he expressed his
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concern for the Baldwin' s , but no remedial
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action was taken. I will ask 'my client to come
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up here and relay the conversation that he
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had with Mr. Baldwin wherein he 'told Mr. Baldwin
10 that he had an architect that was designing
11 the plans for him and that he should contact
12 the architect and the architect would be
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happy to work with him in any way to alleviate
14
his concern. Apparently, Mr. Baldwin didn't
15 choose to do that and only came to the hearing
16 at this time.
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So at this time, I would like to ask
18 Mr. Baldwin to come up and he will explain
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to you what occurred at that time with the
20 Board.
21 MR. MILAZZO: My name is John Milazzo.
22 Back in the winter of ' 89/90 my wife and I
23 came out one day. We don' t live too far away.
24 We live in Hauppauge. We have been property
25 owners in the Town of Southold since approximately
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1970 . We have property in the Village of
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Greenport on Bay Avenue, so we have come to
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like this community and come out whenever we
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can. One of the problems is , as the attorney
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mentioned before, we have some difficulties
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because we can't bring our 'rids . Our kids
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have grown. They're of different sexes. There
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is simply no space in this house for any
10
privacy. So we end up coming out a lot of
11 times, just the two of us for the day.
12
Any way, last winter we came out and our
13
neighbor, Mr. Baldwin, invited us into his
14
house to observe something and while we were
15 inside, he went outside and I wasn' t aware
16 of what he was doing, perhaps my lack of
17 glasses. Apparently, he was going to show
18 some indication that the new site lines for
19 the house would impede his view in some way.
20 In all fairness, I didn't see what the argument
21 was , but it may have been my eyes what he
22 was pointing to.
23 At that time I went back immediately and
24 I told him I have been involved with Civic
25 matters . I have been president of the
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Civic Association for maybe 15, 20 years .
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I 've had extensive dealings with people like
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Mike LoGrande, the supervisor of the Town of
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Islip, the County Executive and Superintendent
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Jones. So I have been in front of Boards for
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many, many years and I know the general gist
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of the argument, et cetera. So I pointed
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out to Mr. Baldwin, I appreciated his concern
10 even though I didn' t know what it. was and I
11 really would appreciate if he talked to my
12 architect because I hired an architect for that
13
very reason. I didn' t want to get into a debate.
14 I was going to live there in this community and
15 I had an architect who had a nice personality
16 as well as a flair to design and I certainly
17 recognized things could be done in terms of
18 movement. At the same token, I didn't want
19 to get into the situation where I would push
20 the house from one side and push it to somebody
21 on the other side. There are two neighbors
22 involved here and I had to treat each of them
23 equally.
24 Another concern that I had was at the
25 time when we were designing this house, the
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major concern had been conveyed to me by
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some neighbor, a Mr. Mulholland who lives
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directly across the creek on this side, who
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shares with me, by the way, the creek bottom.
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The creek bottom is shared between myself and
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Mr. Mulholland at this point. At one time,
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by the way, this was dredged here to allow
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those homes here to become waterfront. There
10 were not normally waterfront and they now are.
11 In fact, Mr. Mulholland indicated to me that
12
there has still been some litigation about
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some dredging going on in there in terms of
14
who owns the soil, but aside that the,
15 Mr. Mulholland indicated he is an attorney,
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by the way, that in the last two or three
17
years, built an extensive renovation to this
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house. He indicated to me that the DEC would
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be a real problem. The town was ameniable
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and recognized the need for improving the tax
21 base( , et cetera, but he conceived a problem
22 and said we should be very careful.
23 with all of this in mind, I was cognizant
24 of not wanting to get into a contest with any
25 of the neighbors and I invited Mr. Baldwin
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to speak to the other neighbors and in turn
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to speak to our architect who was more than
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willing to speak to him. I immediately went
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home that day and called him and said, please
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speak to him, contact him, et cetera, or at
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least be receptive to a phone call. They
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know who you are. They may call you. He
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assured me he would certainly talk to them.
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He had no problem. I had spoken to him since
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then, again, no problem. However, Mr. Baldwin
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has not chosen to speak to him. That is
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number one. In that same letter, by the way,
14
this letter that Mr. Mazzola refers to,
15 apparently was dated the 27th, I think, of
16 November, a day or so ago. There were a
17
couple of comments made there that I ' d like
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to address and if I can, I would like to
19 question you. Maybe I misunderstood something
20
about this requirement.
21 HEARING OFFICER: It is not a requirement.
22 MR. MILAZZO: A desire.
23 HEARING OFFICER: Yes.
24 MR. MILAZZO: In that letter, the attorney
25 uses two phrases . One of them is , "Currently
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the view is not substantially restricted, " and
3
later on he uses the phrase, "The proposed
4
house would drastically impair my client' s
5
view. " I would like to show you something. We
6
took a picture. My wife is an artist and
7
has professional qualifications in the art
8
field and amongst other things , is an artist
9
in photography. So she took a photograph and
10 I believe you have this photograph and if I
11 can I would just like to j point out something
12
on it because you have to look. This is not
13
quite what it should be, but there is a tree
14
stump here. This is the tree stump and there
15 are two trees here that have died here in the
16 last year or two. These were pine trees of
17 fair height. The point being that this view
18 certainly to say, this point here, was obstructed
19 by these trees. If you look at that card the
20 way I have imposed it on this picture, you have
21 dropped this down something like this. This
22 line is further to the right, that is towards
23 the Baldwin' s house than those trees were. So
24 I really question, number one, this first point,
25 that the view is substantially -- that the view
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in the past was unrestricted and now is
3
restricted and, indeed, this new house would
4
do that. So I really wish you would take a
5
look at that.
6
Another thing, if you could please
7
go through this business about the fire
8
department for me? I would like to hear the
9
argument.
10 HEARING OFFICER: The argument is that
11 we require access on waterfront for at least
12
the rear yard area. You are, in fact, closing
13
up the rear yard or the side yard area to the
14
south with a .deck. . In. the past, we have
15 asked people to construct break away decks ,
16 decks that could be pulled away by fire
17
apparatus . In this particular case, however,
18 you must be aware that the normal fire truck
19 is at least 82 feet wide and 10 feet wide
20 with the apparatus that is hanging off both
21 sides. It would not be within. my`..nar.ticular
22 opinion to grant this variance at 5 . 7 feet
23 for that particular reason. We have come to
24 allow access to the rear- yards so as not to go
25 on neighbors ' property even for emergency
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purposes , for normal work in the rear yard
3
area which would require maybe .:,,access
4
in years to come. I have no idea about the
5
sewer system. A bulk head may have to be
6
repaired. Whatever the case may be, that
7
is basically the reason we have had in the
8
past interesting, very interesting areas .
9
I have slides. I teach a class at
10
StiNY on zoning and fundamentals . ►'ve have
11 required people, because of hardship that had
12
to close up side yards , to actually construct
13
doors on both sides of their garage so that
14
fire can be fought through the garage and
15 that presently exists on Carol Road in
16
Southold, which is over on the south side.
17
MR. MILAZZO: If we were to make provisions
18 . for that, if we came up with something?
19
HEARING OFFICER: In my opinion.
20
MR. MILAZZO: What department do you teach
21
in?
22 HEARING OFFICER: In CED.
23 MR. MILAZZO: I 'm in mechanical engineering
24 there so we are neighbors.
25 Thank you.
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MR. MAZZOLA: My client will be available
3
for any additional questions .
4
However, I just asked Mr. Caradona and
5
he assures me that we can place the house
6
so we can have an eight foot side yard on that
7
side.
8
HEARING OFFICER: Thank you so much.
9
We are not used to these presentations. Thank
10
you very much. It' s very, very nice.
11
Is there anybody else that would like
12
to speak in favor of this application?
13
Yes, sir. Would you state your narae
14
for the record.
15 MR. HEANY: icy name is Bernard Heany
16 and I've been a friend of John and Rose for
17
about 15 , 13 years. I know the property.
18 In fact, I 'm surprised that he didn' t ask
19
you to maybe back fill to the edge of his
20
land which would fill in half of that lagoon
21 in front of it and he might have better access
22 to his property.
23 As far as -L he view, I remember 'the pine
24 trees that Joan is talking about. I had .
25 forgotten about theirs until he just mentioned
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them and I didn' t know that John had to give
3
an encumbrance upon his property to someone,
4
to either neighbor, so they could have a view.
5
I thought he owned this property. Maybe I 'm
6
mistaken.
7
John loves the water. He likes to clam.
8
He went clamming this year for the first
9
time. So you know what that' s about. The
10 property, as stated was too small for the
11 family and he told me right from the beginning
12
when he proposed this that he would be willing
13
to switch it, but he thought that the Zoning
14
Board wanted him to stay in the configuration
15 of the, property as opposed to the house and that
16 is the reason. why I think the architect was
17 asked to design it the way the house set on
18 the property. So I don't think he is trying
19 to hinder the neighbors . He is trying to work
20 within the frame work of the neighborhood.
21 Thank you.
22 HEARING OFFICER: Thank you, Mr. Heany.
23 Is there anybody else that would like to
24 speak in favor?
25 Anybody like -�o speak against?
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MR. MCLAUGHLIN: Kevin McLaughlin, 828
3
Palm Street, Greenport, New York, on behalf
4
of the adjoining neighbor, Mr. Baldwin.
5
Basically, there is, I guess , four
6
different area variances that are being
7 requested here. As the Board I 'm sure is
8
well aware, the criteria for an area variance
9 is practical difficulties and further, I 'm
10 sure the Board is aware that the Courts have
11 set forth certain criteria that the Board is
12 supposed to consider in determining what
13 practical difficulties they mean in any
14 individual case. There is basically a
15 five part test. The first part being how
16 substantial the variance is in relation to
17 the requirements in the Zoning Ordinance and
18 in our particular case, there are two side
19 yard setbacks, one of which is 10 feet and
20 one of which is 15 feet taking as far as the
21 setback from the Baldwin' s side being the lesser
22 of the two, being 10 feet. The proposal
23 for this Board is 5. 7 feet which is basically
24 a 53% reduction in what the Zoning Ordinance
25 calls for and I would submit to the Board that,
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in fact, is a very substantial variance in
3
relation to what the requirement is .
4
The second criteria is if the variance
5
is allowed, what the effect of increased
6
population density would have on available
7
governmental facilities . This is really not,
8
I don' t think, a terribly strong argument on
9
that point other than what has been brought
10
up regarding fire safety.
11 The third criteria is whether or not
12
substantial change will be produced in the
13
character of the neighborhood or a substantial
14
detriment to adjoining property owners . I
15 would submit to the Board that both those
16 things would occur. While there are houses
17 in the neighborhood of substantially similar
18 or even in some cases slightly larger proportions
19 than this house, none of which, I don' t believe,
20 are located on lots of this type of configuration.
21 When the Milazzo' s purchased this property,
22 I 'm sure that they were aware or by law should
23 have been aware of what the zoning requirements
24 are. There was a very small cottage on the
25 property and the fact is that when they purchased
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the property, the zoning requirements were
3
the same. So they would have had to know at
4
that time, that to build a house on the scale
5
that they are proposing in this application,
6
there was`-.gging to have to be variances granted.
7
So to a certain degree, I think that is a
8
self imposed hardship.
9
The substantial change in the neighborhood
10 I think would be setting a precedent in that
11 you are allowing a very substantial house on
12
a very narrow lot and if it is allowed here,
13
I think there can be an argument that it should
14
be allowed on other lots. I know it is not
15 binding, but I think it certainly doe's set
16 a precedence. A substantial detriment to the
17
adjoining property owners with all due respect,
18 to pine trees , I think that a building of
19 this size and scope that is illustrated before
20 you tonight, is a much more difficult thing
21 to see through than a pine tree if you ./are
22 attempting to take a look at the water view.
23 I am not suggesting that there are necessarily
24 legal rights to these water views , but I
25 think the Board certainly has the discretion to
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take into consideration. what impact a building
3
of this scale is going to have on the adjoining
4
property owners and that is certainly going
5
to be a substantial impediment to the view
6
of the creek.
7
, There was some mention made that the
8
proposed building is in the same basic footprint
9
of the old building. That is totally untrue.
10 While the northwest corner of the proposed
11 building coincides with the northwest corner
12 of the existing building, the existing building
13
runs at a very market angle away from my
14
client' s property line. The proposed building
15 runs basically parallel with the property line
16 at 5. 7 feet. It' s a two story rather than a one
17 story structure. So I think it' s very easy
18 to see that this is going torauch more severely
19 restrict my client' s view and enjoyment of the
20 water front.
21 The next criteria is whether the
22 difficulties can be obviated by some method
23 feasible for the applicant to pursue other
24 than a variance. I think there are two
25 possibilities here. One, I have submitted a
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letter to the Board along with a reduced size
3
copy of the site plans in which I have turned
4
the building at an angle similar to the angle
5
of the existing property or the existing
6
building. I think if that were done, at least
7
we would have a substantial side yard as we
8
are getting closer to the water and would do
9
much less in restricting my client's use and
10
enjoyment of this water view.
11 The second obvious possibility is to
12
scale down the size of the house. Well I
13
certainly have no reason to want to impede
14
the Milazzo' s from having their family out
15 here, you are going from a 500 square foot
16
building basically up to a $2 , 000 square foot
17 building and maybe there is some medium point
18 in there where they can reasonable enjoy their
19 property without putting such a substantial
20 structure on such a narrow lot.
21 Then the final requirement criteria for
22 you to look at is the view of the manner in
23 which the difficulty arose and consideration
24 of all the above factors , the interest of
25 justice will be served by not allowing the
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variance. Again, at the time of the purchase
3
of the property, the zoning requirements were
4
the same. They'.re.:-deemed. .to know what those
5
zoning requirements are and I think if you
6
take all of the factors into consideration
the proposal is just not fair or not just to
8
the adjacent property owners .
9
They' re right on top of the property
10
line. They' re asking to build on a straight
11 line, parallel to the property line with my
12 client' s property and all these factors really
13
place a very strong burden on my client.
14
In addition to the loss of water view,
15 of course there is loss of privacy to some
16 degree an addition to the problem with the
17 possibility of the access for fire, there is
18 the problem of simple repair and maintenance
19 on the house. If the building is located
20 that close to the property line, it may be
21 necessary for them to encroach repeatedly
22 onto the Baldwin' s property in order to do
23 relatively routine maintenance and repairs
24 on that side of the house. I think that is
25 something that should be taken into consideration
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by this Board..
3 _
At this time I would like to have
4 . .
Mr. . Baldwin 'come up and .make some remarks
5
to the Board and perhaps to give his .version
of some of the events that have occurred in the
7
past..
8
Thank you.
9 .
MR.. BALDWIN: , I am George Baldwin from
10 1045 Island View Lane, Greenport. I would
11 like to address myself to Mr. Milazzo with
12 reference to conversation that we had. This
13
conversation, by the way, I remember the
14
conversation and it was after many others.
15 Mr. Milazzo had indicated last year that
16 he wanted to. -- that he was planning to change
17 his house ' and .to put a second story on it.
18 My concern at that 'time was the -- was not
19 the view that I 'Im concerned with here today._
20 It -was the view over the top of this house.
21 In the winter time we ,enjoy a view of the
22 sunrise over Mr. Milazzo' s house. If he
23 puts a second story up, we will be deprived
24 of that view. I feel for us to complain about
25 that would be unreasonable.: .' I feel that I would
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have to give that up because you can see
3
it' s a nice looking house and I felt that
4
would be a trade off. The first time we spoke
5
of the view on the side was when I questioned
6
him as to where the location would be. I
7
questioned Mr. Milazzo' several times prior
8
to this and he said he didn't have the plans
9
and he would give me an opportunity to take
10
a look at the plans when they were first
11 available. . When I saw that he had put
12
stakes out, I asked him what the -- where
13
the house would be located and he said and
14
I quote him, "You' ll see this map I made. "
15 And it had strings attached to it. I stood
16
there and looked at it and I evaluated it
17
for a week and realized it would take away
18
my view not only of the bay, but of Shelter
19
Island Heights. It would completely close
20
me out. The way things are today, I can sit
21 in my back family room and look at Shelter Island
22 Heights.
23 A week after this particular conversation,
24 the Milazzo' s were out again and I invited them
25 into my family room and I showed them. I held
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a long pole up at the location where the
3
corner of the house would be, the one that
4
is closest to the creek. I said, "What you
5
see to the left is what I would see. That' s
6
what I would be able to see. I would be
7
able to see across the creek and over into
8
my neighbor' s yard, Mulholland. To the
9
right is what I will be deprived of. " His
10 response was that he was acquainted with these
11 things and maybe when we have a Hearing we
12
could work something out, that we could change
13
things around.
14 The next conversation and this is the
15 conversation that Mr. Milazzo refers 'to was
16 after I had received the notice in the mail,
17 the notice. The first notice in the mail was
18 dated July 12th of this year and I said, "
19 I received the notice and there is no change
20 in that, John, it' s the same way. " He said,
21 "Is that right? I didn' t know you got it. I
22 didn' t know I gave Mr. Caradona the authority
23 to deal without me and I didn' t know that
24 he had sent it out. " He said, "But I did
25 tell him to call you, " and he indicated that
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he would direct him to call me. That' s the
3
conversation as I remember it and I feel that' s
4
the way it occurred.
5
I have been open to accommodation from
6
day one. I don' t know why Mr. Milazzo has
7
not responded to my request. I wouldn't be
8
here if. he had responded to my request. He
9
talks about the trees that were blocking the
10
view that have since died. Those trees, they
11
did not disrupt my view of Shelter Island.
12
They did take away some of the view of the bay,
13
but did not disrupt my view of Shelter Island.
14
I have written a letter to the Board and
15
I would like to submit it. What I did, I
16
looked at the application and I challenged
17
those parts of the application that I feel
18 are not accurate. I would like at this point
19
to submit this letter to you.
20
(Whereupon, letter was handed to the
21 Hearing Officer. )
22 HEARING OFFICER: Thank you, Mr. Baldwin.
23
Do you have anything else, anything you
24 would like to say in rebuttal? Is there
25 somebody else that would like to speak in this
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case?
3
MR. CASAMASINA: My name is Nicholas
4
Casamasina, .and I live to the right of this house.
5
Now I see a big house going up next to me and
6
I have a small cottage 15 feet away. I have
7
no privacy, nothing left if this variance is
8
granted. That' s why I put an objection to
9
this size building. I think you should take
10 that into consideration.
11 HEARING OFFICER: Thank you, sir.
12 MR. MAZZOLA: I would like to address myself
13
to the factors that Mr. McLaughlin mentioned
14
that the :Board.r.should :take:...into :.consideration.
15 Number one, how substantial the variance is
16
in relation to the requirement. Well,
17 Mr. Caradona has told you he designed the
18 house for the requirements of the Milazzos .
19 They have four children. The requirement is
20 not any greater than what they need. In other
21 words , it' s the absolute minimum that they
22 would need in order to accommodate the family.
23 So, in terms of how substantial is in relation
24 to the requirement, I believe that' s been
25 adequately addressed by Mr. Caradona.
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The next that the variance would have in
3
the increased population and density and on
4
available government facilities . As a
5
matter of fact, the Milazzos would not be
6
residing there on a full-time basis with
7
three children there all of the time or four
8
children there all of the time. They're
9
out here mostly on weekends and when they
10 do take up residency as retired folks , the
11 children will not be living with them full-time.
12 It' s a part-time matter in terms of the size
13
i of the population. I don' t think this is
14
an area that couldn't handle a few more people
15 coming out on a weekend or on a casual basis
16 from time to time. So I think the argument
17 about the population is not one the Board should
18 take into consideration.
19 The other factor was whether a substantial
20 change will be produced in the character of the
21 neighborhood or a substantial detriment to the
22 adjoining property. Well, you have a letter
23 from Mr. Heffernan, which indicates he is a
24 local real estate broker who lives in the area.
25 He has indicated many of the houses in this
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area have been renovated, have been renovated
3
to be used as full-time residences , year 'round
4
residences and certainly a building like this
5
is going to do nothing but improve the value
6
of the other houses in this neighborhood not-
7
withstanding the objection of two neighbors .
8
In terms of the size of the house, if
9
you look out the Baldwin' s house, it' s
10
probably a third larger than the Milazzo ' s
11
plan.. to put on there. Admittedly, it' s on
12
a larger piece of property, but it is not
13
out of place and it' s in the character of
14
the neighborhood. Even the design fits
15 the character of the neighborhood. It' s
16 a design that. Mr. Caradona said which fits
17 in. You can' t do anything to the rest of
18
the neighborhood. Again, notwithstanding the
19
complaints of the two neighbors , but it will
20
increase the value of the neighborhood in
21 general and again, that point is addressed
22 by Mr. Brezlin in his affidavit that I handed
23 to you.
24 The factor of whether or not this could
25 be obviated by some other method, my client is
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willing to realign the house in order to
3
take Mr. Baldwin' s concerns into consideration.
4
He is willing to turn the house slightly. He
5
is willing to move the house over a little
6
further as you suggested yourself, but in
7
any case, no matter what he does there, he
8
has a practical difficulty. He meets the
9
practical difficulty tests which the cases
10 address themselves to for this particular
11 parcel. It' s an irregular shape piece of
12
parcel. There is not much else he can
13
do with it. He cannot move it back any
14
further. He will further violate side yards
15 and he can' t go any further closer to the
16 bulk head because if he comes to close to
17 the water, then he will violate whatever the
18 DEC rules are. He has got to be basically
19 in that spot.
20 As far as the argument about self-imposed
21 hardship, again, that is something the courts
22 have addressed themselves to and in terms of
23 an area variance, I don' t think it' s as
24 significant as Mr. McLaughlin indicates . It
25 may be more significant to a u*se. variance.
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and the courts say that it is more significant
3
to a use ..variance',. _but an area variance,
4
I don' t think the Board should take into
5
consideration the fact that this may be a
6
self-imposed hardship. In terms of whether it
7
is a self-imposed hardship, my client, prior
8
to purchasing this property, called somebody
9
in the town and asked whether or not it could
10 be expanded. Now this is many years ago
11 but she was told that it could be and, in fact,
12
that' s been their plan all along. When they
13
bought it, they realized, obviously, it was
14
too small. Again, I don't think this is
15 something that the Board should take into
16 consideration as a deciding factor and whether
17
or not to grant or deny this application.
18 I realize the Board has sort of a balancing
19 act to do, but in terms of whether or not my
20 applicant is willing to accommodate the
21 neighbors in the best way he can, he is
22 willing to do that and his architect has
23 indicated he is willing to do that. He is
24 willing to take into consideration your
25 objection about access for fire apparatus and
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he will move the house over. Again, that
3
may impair Mr— Casamasina' s enjoyment somewhat,
4
but I don' t think anymore than the way it is
5
now. In other words , by moving over another
6
-two feet; Mr. Casamasina is not going to lose
7
any additional privacy. I think the Board
8
should grant the application based on that.
9
HEARING OFFICER: Before you sit down,
10
you have no specific objection as to scheduling
11
the house paralleling it to the south property
12
line?
13
MR. MAZZOLA: No objection to that.
14
HEARING OFFICER: Do you have any
15
objection to asking your architect to show
16
us the footprints looking like that and allowing
17
us to place it basically eight feet at its
18
closest point to the Baldwin property and then
19
showing it. parallel?
20
MR. MAZZOLA: They have no objection to
21 that. He will be able to provide you with
22 that.
23 HEARING OFFICER: Bearing that in mind,
24 then what I will do is recess this Dearing to
25 our regularly scheduled mee't,ing which is
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December 13th at which time we would hope we
3
could have that before us so we could start
4
deliberating on that particular matter and
5
close the Hearing on that date. So it is
6
approximately two weeks from tonight. it
7
does not have to be a terribly formal thing
8
as specific as the site plan, but something
9
we can use as a working model.
10 Thank you.
11 Yes , Mr. Casamasina?
12
MR. CASAMASINA: I object to that because
13
you are bringing the house 13 feet away from
14
my property, two floors up and it isn' t like
15 they show it there. You don' t see my house
16 there at all. So, if you actually see the
17 situation, that' s what I ' d like the Board to
18 know.
19 HEARING OFFICER: I was there. I know
20 this piece and I was there and I will be back.
21 After we get the actual thing from the architect,
22 the actual footprints , I will be back and we
23 will look at it prior to making the decision.
24 We are just going to close the Hearing --
25 MR. CASA14ASINA: What happens to the people
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move to Florida for the winter?
3
HEARING OFFICER: You can leave us your
4
address or you can give us .a call and we will
5
afford you a copy of that. Will you be leaving
6
for Florida prior to that?
7
MR. CASAMASINA: I figure by January lst.
8
HEARING OFFICER: Okay. Leave us your
9
address or give us a call on the 14th which
10 is approximately two weeks from tomorrow and
11 we will send you a copy of this and if need
12 be, we will meet ' you there. I have no problem
13
with meeting you there as long as it is on a
14 Saturday. We are not here to cause anybody
15 a hardship. We are here trying in our best
16 possible way to get everybody in one specific
17
unified type body which is sometimes very, very
18 difficult.
19 I should point out for the record, in
20 years gone by, we did send people out in the
21 hall and tried to get them to work out these
22 things and so on and so forth and we almost
23 had a fist fight one time so we do not do that
24 anymore, but we will do the best we possible
25 can and we thank you very much.
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MR. CASAMASINA: Let' s have them make
3
a smaller house. That ' s . all.
4
HEARING OFFICER: That may very well be
5
the case in the situation. We don' t know at
6
this point.
7
Thank you.
8
Would you state your name for the record?
9
MRS . MILAZZO: Rose Milazzo. I just want
10
to mention one thing. Our neighbors to the
11 right and our neighbors to the left are each
12
from a residence. We are speaking about a
13
house which would be used as a full-time house.
14
They bulk winter in Florida and prior to
15 purchasing -- this little piece of land was
16
purchased about five years ago and before we
17 could purchase it, we had four children then
18 just as we do now. I called the Town to find
19
out if there was a possibility we could enlarge
20
that house and they said of course. We would
21 work with you. They gave us great assurance
22 they would be able to do something which would
23 accommodate our children.
24 Interestingly enough, the seed for the
25 two story house came from our neighbor to the
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left who said that one of the children were
3
interested in purchasing that particular piece
4
of land to build a two story house because
5
really the property was so narrow, there
6
was nothing else you could do with it. That' s
7
when we started to think that' s a very good
8
idea. We will consider a two story house.
9
We suggested this to Mr. Caradona when he
10
was working on these plans .
11 The house currently sits 5. 7 feet away.
12
It is now at that distance. what we tried
13
to do is accommodate the neighbors. Our
14
neighbors to the left are quite a distance
15 behind us. The neighbor to the right is
16
adjacent to us . Therefore, the side yard
17
on his side remains rather large so that we
18 wouldn' t infringe on his privacy. We have
19 a photograph, a Xerox of the photograph, which
20 I took that indicates that everything has
21 waterfront property -- water view. Possibly
22 losing two degrees of water view should not
23 be so significant as to keep someone from moving
24 to a place that they really love and I really
25 would appreciate if you would consider all these
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things when you make your decision.
3
HEARING OFFICER: Before you sit down, my
4
only question that I did not ask, maybe you
5
can answer; how high is the ground water?
6
Are you anticipating a basement in this house
7
at all?
8
MRS . MILAZZO: No.
9
HEARING OFFICER: Thank you very much.
10 MR. CARADONA: If I may address
11 Mr. Casamasina with reference to the size
12 of the building, it' s a 26 foot wide building.
13
I think that by any standard is not a large
14
building and in addition to that, the side
15 yard requirement as of right now is 15 feet
16 and in addition, 10 feet on the other side.
17
The other side is impossible to get. As
18 far as Mr. Casamasina is concerned, we are
19 complying with that regulation inasmuch as
20 we are trying to stay as close to the 15 feet
21 as we possibly can. That is really not an
22 objection to the addressed.
23 HEARING OFFICER: Mr. Caradona, we had
24 in the past asked people to construct some
25 sort of expansion. In this particular case,
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it could be something as small as a two by four
3
attached to the present dwelling to give us
4
a height of what the gable end is going to
5
be on that particular structure. Is that
6
going to be a problem? I realize it would
7
have to be erected. Is there a problem?
8
Could you do that for us?
9
MR. MAZZOLA: I will have to speak with
10
my client.
11 HEARING OFFICER: I will probably be going
12 there on the 15th of December. So if there
13
is some possibility of doing that for us , it
14
would be helpful. dust nothing more than a
15 14 foot 2 by 4 or whatever the situation, some-
16 thing that can be supported, something that will
17 not fall or will not hurt anybody or that will
18 not roll over.
19 MR. MILAZZO: I think it' s possible.
20
HEARING OFFICER: If it is possible.
21 We thank you so much.
22 MR. MCLAUGHLIN: I just want to set the
23 record straight on a couple of things. One
24 is that my clients are year ' round residents,
25 not summer residents., there all the time.
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The second thing, I 'm sure the Board
3
understands, I just want to reiterate for the
4
record, it is not the same side yard that
5
we are -talking about as presently exists except
6
at the northwest corner of the building.
7
The third point is ; all their arguments
8
are premised on the fact that the house has
9
to be this large. With all due respect to
10
children and -everything, perhaps this lot
11
just isn' t wide enough to accommodate the
12
size building that they're talking about and
13
I think the Board ought to take a serious
14
look at that in determining whether or not
15 whatever square footage there is on the first
16
floor and use as necessary.
17 Thank you.
18 If there are no further comments , I make
19
a motion to recessing this Hearing. This
20
is completing the verbatim portion of this
21 Hearing until the receipt of new footprints
22 or additional footprints from the architect
23 on or before December 13th so that we might
24 go down and reinspect the premises on
25 December 15th. I will offer that as a resolution,
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gentlemen. All those in favor say aye.
3
BOARD MEMBERS : Aye.
4
HEARING OFFICER: Thank you very much
5
for your courtesy and for coming in.
6
7
(Whereupon, the above-mentioned Hearing
8
concluded at 9 : 45 P.M. and at 9 : 50 P.M.
9
another Hearing commenced. )
10
11 HEARING OFFICER: We would like to reopen
12
the Hearing at this time of Dominick
13
Sblendido and Auricchio, Number 3955 .
14
Would you like to state something for the
15
record?
16
MR. CARNELLI : Yes . I would like to complete
17
as quickly as I can the remarks that I had begun
18
on the last Hearing and I understand that
19 Mr. Victor La Sarde is here. One of the three
20 reasons for the extension to the November 1st
21 date was to speak to Mr. La Sarde. The purpose
22 as I understand the adjournment to November lst,
23 was to provide additional information to the
24 Board as requested by the Board, specifically
25 the Wilmott case decision which I entered last
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time which I would ask the Board to very
3
carefully look at not just the determination
4
which, of course, goes our way, but also
5
the technique of looking at the definition
6
of the one family dwelling, definition of
7
family and then concluding as to the Riverhead
8
Town or neighboring town that there is nothing
9
about eating arrangements for kitchen in
10
either definition and hence, one or two
11 kitchens is irrelevant to the determination
12
of a one family dwelling.
13
As I now know, you have inspected the
14
property as a Board. That was one of the
15 other items of information, so I 'm sure you
16
are familiar with the layout as well as its
17
plans. The information you requested about
18
the square footage of the stoop area and the
19
interrelationship of the kitchen and the great
20 room as shown on the second set of plans I
21 know is now available to you because you have
22 seen the place. The second purpose of the
23 three of the extension as I understand it,
24 was to obtain the presence of Mr. La Sarde
25 for inquiry from the Board and to confirm, for
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my purposes at least, the sequence of events
3
related by me on behalf of the Petitioner
4
to the Board at the Hearing pride of November lst
5
about how we came to be before this Board and
6
specifically, about those issues which concerned
7
Mr. La Sarde in his Notice of Disapproval and
8
in his June 1st stop work order. They were
9
clearly defined, and, in fact, I believe I
10 offered it the last time, a letter that I had
11 sent to Mr. La Sarde on October 2nd which
12 indicated that as the matter had been extensively
13
delayed since the Notice of May 29th, letter
14
of disapproval, since my clients were anxious
15 to get going on this work before the ' cold
16 weather sets in, they were planning removing,
17
pending final decision of the Board, the
18
plumbing pipes from the wall of the great
19 room in order to have the stop work order \
20 lifted. Even at that time, Victor indicated
21 that was, in fact, the problem here, that
22 it stopped the work in May and has been
23 stopping it for the last five months, that
24 he was concerned that the piping in the great
25 room, which we had indicated would be used for
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a wet bar and that might be converted to a
3
kitchen, but that if we -took the piping out,
4
the stop work order would be listed.
5
The final purpose, as I understand, the
6
extension was to allow me to review and reply
7
to the memo, supplemental memo and subsequent
8
letter 10/22/90 of Ms . Ongioni, which quoted
9
a number of cases and I think you have the
10
text of the cases in regard to that. I
11 indicated last time I don' t want to beat
12
this particular area to death in light of time
13
and other factors, but Ms. Ongioni, on behalf
14
of the neighbor told or asked that you
15 consider their opposition as an application
16
to revoke this permit, declare this two family
17
with or without a kitchen and essentially tear
18
down half of the house.
19
I don' t think you are going to do that.
20
I have offered to you the position that
21 under the applicable statutes , which
22 interestingly enough, we both quote, State
23 Law and Town Law under 100-271 of the Town
24 Law. I don' t think you have the authority
25 to revoke the permit. I think the purpose
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of this ;.ZBA'-:Hear.ing, since we commenced, the
3
Hearing by bringing the petition, is to review
4
the Notice of Disapproval and to give us the
5
interpretation we sought in regard to the
6
second kitchen and give us the determination
7
on the front yard variance and I pointed out
8
further that, yes, the neighbor could have
9
brought a petition to you, but if she had
10
brought a petition to you, the burden of
11 proof would have been on her, whereas here
12
it is on me to convince you I 'm entitled to
13
a variance and also to ask you for this
14
interpretation favorable to us . You can' t
15
piggyback,.. as I said, the two applications.
16
Either she brings it or I bring it. Since
17 I 'm bringing it, it is for the purposes to
18 find in the petition. I 'm going to leave it
19 at that. There is a number of cases on it,
20 but I think I ' ll leave that for you and the
21 Town Attorney.
22 In any event, I ' ll be brief. Even if
23 you had the authority, you can' t revoke a
24 permit that was legally granted in the first
25 place. It is our position now and it has been
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our position that every single argument which
3
has been advanced for the premise or the
4
principal that we have an illegally issued
5
permit is not valid.
6
Just to review the ones that I recall,
7
first we were told the lot coverage was
8
excessive. That was dismissed. The lot
9
coverage is not excessive. It' s 13. 5. It
10 can be as much as 20o with the new house or
11 expanded house.
12
Second, we were told watch out for the
13
wet land violations . I handed up to you
14
last session an indication that there is
15 300 feet Ms . Ongioni speaks of, has following
16
a series of exceptions one of which is a manmade
17 structure more than 50 feet in width which is
18 the definition of the road which is intervening
19 between the water and our premises . Again,
20 sure there is 300 feet in there, but there is
21 also an exception. The exception essentially
22 occurs from the exhibit I gave you right after
23 the 300 feet. So I submitted to you to show
24 you that that is also not accurate.
25 The bed area was the contention that we
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need a front or rear or side yard variance
3
because of the expansion. That is -simply
4
not true. Interestingly enough, again, we
5
quote 100-242 of your code. She quotes the
6
same thing. You have to read it. What it
7
says, as I understand it, is if a non-conforming
8
dwelling is expanded as long as the degree
9
of conformance is not increased, there is no
10 problem. It isn' t. We built no further
11 front, nor any further back, nor anywhere near
12
the side lines . The only thing that expanded
13
further is the stoop and we are speaking
14
here, as you know, an area variance for the
15 stoop only. In ,regard to that area for the
16
variance for the stoop, I would point out
17
that we are seeking on interpretation an
18
area variance. We have not now nor do we ever
19 seek a use variance and I saw the Board for,
20 finally, the notice for this meeting, getting
21 the issues correctly stated in the notice
22 and an interpretation is requested regarding
23 a second kitchen facility and its relation
24 to single family versus two family use and a
25 variance for an addition with an insufficient
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front yard set back with the stoop. That is
3
what we seek. That is not a use variance,
4
small area variance for a stoop only and
5
for an interpretation.
6
In regard to the argument to the area
7
variance, we are arguing that there is an
8
unnecessary hardship which would result if
9
you did not give it and practical difficulty
10
requires you to give it and the summation
11 of those arguments is that this is a g preexisting,
12
nonconforming smaller lot. The neighboring
13
pieces is an 18 feet set back which is what
14
we seek and we seek it for a stoop, not for
15 a building line. The average within the
16 300 feet is 26 feet. Our house is 27 on one
17 end and 30 on the. other and back. So the
18 only thing that would exceed that would be
19 the surrounding stoop entrance area. The
20 area that we are in, what we seek is consistent
21 with that area as evidenced by a series of
22 photographs that I will submit with our comments
23 and let you review. I am pretty sure you are
24 familiar with this area because you have
25 been over there and I believe that makes the
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case for practical difficulty or unnecessary
3
hardship and consistency with community
4
standards.
5
In regard to the arguments that are
6
advanced through Ms . Ongioni, as to bad faith,
self-imposed hardship, I think that you don' t
8
believe that and I think it is not credible
9
in light of the facts. If anything, there
10 has been complete good faith on behalf of these
11 individuals, but with a little more light, they
12
probably would not have had the problems they
13
had. They certainly have made good faith
14
attempts as I think Mr. La Sarde will attest
15 to to comply. They applied twice and got
16 approvals twice pp per plans submitted.
17 The final comment I would like to make
18 is in regard to the cases that are in the
19 supplemental brief and in the letter, I do not
20 think the cases 'are correctly summarized or
21 correctly characterized. I cannot stand here
22 and make a three hour argument because I would
23 suggest you take it up with the Town Attorney,
24 but I also asked to submit two cases that are
25 relevant, one a Court of Appeals case and I
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think I can make this very straight forward
3
in about one minute. One of the cases , the
4
principal case in this area of kitchens
5
appears to be Baskin, which is a 1976 ultimately
6
Court of Appeals case. It is quoted by
7 Ms. Ongioni and the Court of Appeals case is
8
not quoted. It is the Appellate Division
9
case that is quoted. What happened here was
10 that the Board of Zoning Appeals, the Supreme
11 Court and the Appellate Division were all
12 involved. It got to the Court of Appeals .
13
I3EARING OFFICER: The point you are trying
14
to make --
15 MR. CARNELLI : The point I 'm trying to
16 get across is that in the final decision,
17 unquoted in the paper you got from Ms . Ongioni,
18 the decision was reversed and confirmed on
19 the descending memorandum of Justice Irwin
20 Shapiro. Shapiro' s memorandum is exactly
21 supportive of our position, not of the
22 adversary' s position and impertinent parts
23 he says , "Zoning ordinances should not be
24 used to bar owners and legal occupants of
25 a one family home in a one family zone from
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using available space to provide kitchen for
3
themselves with such subsidiaries as additional
4
kitchens , sitting rooms , et cetera, simply
5
because in other hands such facilities could
6
be used for the maintenance of a two family
house. It is clear that the existence of
8
a mere opportunity for a future evasion of
9
violation of law does not raise a presumption
10 that such presently exists. There will be
11 time enough for the petitioner and neighbor
12 to take action to end the violation when and
13
if it occurs, should not receive the aid
14 of the Court to fend off a mere possibility
15 of future violation. "
16 In 1989 , in another case, Bennett,
17 which is the last case I will indicate to you,
18 and this is the whole point of this. The
19 quote which is in the Shapiro case, the
20 ' 76 Court of Appeals case concludes by saying,
21 "A standard is not designed for potential
22 use, but actual use. "
23 In the later April ' 89 case of Bennett,
24 the language is as follows, "To prohibit
25 construction based on a possible future illegal
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use was arbitrary and capricious . " In that
3
case, the Board did this , they based a
4
finding not to permit upon the reasoning
5
that the place would be readily convertible
6
into a nonconforming two family house. The
7
point I 'm trying to make, it' s �.use is what you
8
have to look at, not what it could be. That ' s
9
about all I have to say. Thank you for
10
listening.
11
HEARING OFFICER: I do not think in the
12
structure of the four Hearings we have had
13
on that particular application that we
14
actually had given you an interpretation that
15 was done by our ,Board at the request of
16
the Building Inspector, which is possibly one
17
of the reasons and I will ask him in a minute.
18
There was a request on October 21, 1987 . We
19
rendered a decision on 1/8/88 concerning
20
the fact of a one dwelling unit requires one
21 kitchen and this is for you.
22 Could you also afford us a copy of the
23 survey of the original dwelling when it was
24 purchased, if you have an old survey?
25 MR. CARNELLI : I will look for it. I
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believe I may.
3
HEARING OFFICER: Ms. Ongioni, I would
4
like to speak with Mr. La Sarde.
5
We thank you for coming down at this
6
late hour. Is there anything you could shed
7
as to the light on the subject here that
8
would help us understand this application a
9
little bit better without getting into
10 any specifics?
11 MR. LA SARDE: The house as it was
12
originally applied for, was altered to the
13
point where we had no choice but to issue a
14
stop order and have the owner or the contractor
15 resubmit plans for what he really wanted to do.
16
That' s probably what constituted the first
17
stop order on top of the fact, the contractor
18
never bothered to call for any inspections .
19 When he submitted the second drawings , we saw
20 then that it was now being converted to a
21 brand new dwelling as opposed to an addition.
22 So the necessary fees had to be adjusted and
23 the whole plan had to be reevaluated. At
24 that point in time, we had seen that he had
25 put an entirely different porch or stoop, if
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you wish to call it that, than what was
3
originally submitted. Now, the fact that
4
the new stoop exceeded 30 square feet had
5
to be now looked at as part of the setback
6
problem. If he had stayed at the 30 feet,
7
there would have been no problem. It is not
8
considered part of the set back requirement.
9
I don' t suppose it is a secret that the contracto
10
was a very arrogant sort of individual and
11 further down the road when we asked him about
12
the plumbing in the so called great room,
13
innocent of temper, he made enough remarks
14
that I said Whoa. I would rather the Zoning
15 Board take a look at that because I have a
16
bad habit of looming at something and if it
17
looks like a skunk it acts like a skunk and
18 it smells like one, it' s a pretty good bet
19 it probably is.
20 The pipes in their design would indicate
21 a rapid conversion to a second kitchen. At
22 that point I recall that the ZBA made a
23 decision on that and I understand that the
24 ZBA doesn' t set policies for the town, but
25 because of the remarks that the contractor made,
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I guess none of your business what are they
3
going to do with the second part of it, gave
4
me the authority to stop everything again
5
and bring it before this Board for their
6
determination. As far as the height is
7
concerned, or the set back on this building
8
outside of the stoop, there is nothing wrong
9
with it. It is not a nonconforming building.
10
It is not a nonconforming building outside
11 of the fact that the stoop is an encroachment
12
in the front yard. The contractor or the
13
owners indicated that should the Board of
14
Appeals not grant the variance, they would be
15 more than glad to knock it down and go back
16 to where they belong. The original blueprints
17
indicated a square entrance four feet off
18
the building with two entrances on the side.
19 The new one, of course, is a half round --
20
I don' t know. On sight dance hall as far
21 as I 'm concerned, but that is my opinion.
22 So that' s where we' re at. I would like an
23 interpretation on the visibility of a second
24 kitchen. I don' t see anything in black and
25 white that says it' s prohibited. The fact
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that the ZBA made. a decision on it, I felt
3
that' s the way I would go to see how this
4
Board would like to address this.
5
HEARING OFFICER: At this time, do you
6
feel this building, as it presently exists ,
7
has been increased by mo�e.:than .500?
8
MR. LA SARDE: Probably 900 , but I
9
don' t understand. It' s a permitted use and
10
it meets the requirements.
11
HEARING OFFICER: In reference to size?
12
MR. LA SARDE: Yes.
13
HEARING OFFICER: Certainly, for the
14
record, Victor, we went over there and the
15 applicant showed us the entire dwelling and
16
we did go through it. I will mention for the
17
record that it certainly was interesting to
18
see two separate heating systems and so on and
19
so forth as is the case in this particular
20
dwelling and you know we are going to do the
21 best we can in dealing with this application.
22 It' s not an easy one. How. to understand
23
it and deal with it to the best of our ability.
24 MR. LA SARDE: I would also say there
25 is nothing in .the law that does not permit two
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furnaces. I suppose when people get up to
3
my age, they get eccentric. I 'm certainly
4
not about to design the houses for them.
5
Again, while I'm on my feet, I apologize
6
for not having a jacket on. This is probably
7
the fourth meeting I have been to since 4 : 00 .
8
If you would excuse me on that, I appreciate
9
it.
10 MR. DINIZIO: Before you sit down, Victor,
11 this is not a problem with it, but you see
12
buildings and plans for the buildings and you
13
probably see thousands of them in the course
14
of your business and I am just wondering if
15 two stairways , the configuration of -'he
16
upstairs , the two bedrooms and the bathrooms ,
17
the separate basements so to speak, the
18
separate stairways to the downstairs , two
19 doors in the front, would you consider that
20 unusual?
21 PAIR. LA SARDE: We probably have about
22 15 of the same similar designs . It ' s like
23 taking a piece of paper and folding it in half
24 and both sides are equal. Again, -co answer
25 your question, I haven' t got the luxury of
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assuming what will happen after the CO is
3
obtained. The best I could do with that is
4
I could be highly suspicious, I could keep an
5
eye on the place and if a violation occurs ,
6
hopefully I will catch it. Until that happens ,
7
I can have all the thoughts in the world,
3
and I keep them to myself because I don't
9
like to go to court. What I 'm trying to say,
10
Al, -is you can' t assume, something is going
11
to happen.
12
MR. DINIZIO: I was wondering, two
13
stairways within six inches of each other --
14
MR. LA SARDE: And a solid wall between.
15 I know what you are saying.
16
HEARING OFFICER: Is that unusual or
17
something you would see?
18 MR. LA SARDE: No. The law is very
19
ambiguous as far as family is concerned, as
20
far as blood relation is concerned and God,
21 if the Supreme Court of the United States
22 would design a family
,y, I 'm not about to. I ' ll
23 tell you right now, that' s the best I can do
24 on it.
25 HEARING OFFICER: Ms . Ongioni?
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MS . ONGIONI : I am not going to belabor
3
the point with the Board at this time. I
4
believe that the record is more than adequate
5
in favor of my client' s position and our
6
position to this application. Both the law
7
and the facts clearly dictate a finding
8
against the applicant. I know it' s a very
9
difficult decision to make because of the
10
fact that the building is close to completion,
11
but notwithstanding that, it is apparent that
12
the law has been violated and that it has
13
come before you at this late date a year and
14
a half after construction began because of the
15
opposition that was being imposed by 'my client.
16
I have one final submission for the Board
17
which recounts very briefly all of the facts
18 relating to this.
19
(Whereupon, a document was handed to the
20
Hearing Officer. )
21 MS . ONGIONI : I have a few things. First
22 of all, the applicants has relied on very
23 little law in support of its application. The
24 primary case that it has relied on is a
25 Riverhead Zoning Board of Appeals case which
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has no precedent setting value for the Zoning
3
Board of Appeals . The only precedent setting
4
jurisdiction is the Supreme Court or any other
5
court. A neighboring jurisdiction or a .
6
neighborin4 municipality does not set law
7
for the Zoning Board of Appeals. I 'm sure
8
you are aware of that.
9
Secondly, the Southold Code defines a
10
one family dwelling is that which contains
11
a one dwelling unit and conversely a two family
12
dwelling unit contains two dwelling units .
13
The question is what is a dwelling unit. The
14
code further defines a dwelling as a minimum
15
area of 850 square feet containing complete
16
housekeeping facilities for one family and 'having
17
no enclosed space in common with any dwelling
18
unit. Now, what is a complete .housekeeping
19
facility; electric, heat, kitchen, entrance,
20
layout, a bathroom. Whether or not there is
21
a second kitchen is irrelevant. Tlis particular
22 structure has two complete housekeeping units.
23
That is the inescapable conclusion. There is no
24 other alternative. The question whether or not
25 this is piggybacking onto the application that
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is pending before the court, is adequately
3
addressed in all of the papers before you and
4
I will not belabor that point.
5
I think that when you look at the entire
6
history of this project, you have had statements
7
and restatements by the applicant. Now the
8
applicant is saying that this is not going
9
to be a two family house. However, the
10 applicant has also stated in the past, to
11 be restated at a later date that there would
12
be two kitchens, that there would be one
13
kitchen, that there would be one kitchen and
14
a wet bar and finally now we are back to two
15 kitchens . The applicant has also stated
16
that the house is not within 30.0 feet of the
17
wet lands. Notwithstanding the DEC violations ,
18
that the fact is that the application for
19 the building permit stated that the house
20 was less than -- was not less than 300 feet
21 for the wet lands. That was a misrepresentation.
22 The applicant also stated that there would be
23 two separate dwelling units. Now they are
24 characterizing it as an interrelational state.
25 What does that mean? The applicant has stated
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on the application that this was a renovation
3
to a one and a half story house. It turns
4
out to be totally new construction and enlarging
5
a house from approximately eight or 900 square
6
feet to approximately 3500 square feet. The
7
applicant stated that the renovation would
8
cost about $80 , 000 . Now they are claiming
9
it' s about $175, 000 . When the trees were
10 cut down, the applicant said that it was
11 a mistake by the builder. Which statements
12
are we to believe. Basically, it appears
13
that this is a flagrant disregard for the
14
rules of the town and I think it is an
15 encumbrance on the Board to take a very
16
hard look at everything .that is before it,
17 the facts , the history, the law and make the
18
tuff decision to revoke the building permit
19
which I contend was illegally issued because
20
-there was a substantial degree of an increase
21 in the nonconformity of the building. The
22 building was a nonconforming structure on this
23 lot because it did not comply with the code
24 requirements. That degree of nonconformity
25 was increased from a 900 square foot house to a
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35 square foot house. In my opinion, that
3
is a substantial increase in nonconformity
4
and for that reason they should have been
5
here a year and a half ago seeking permission
6
to build.
7
I thank you very much for your time
8
and your careful deliberation.
9
MR. CAR14ELLI : I have rebuttal on one
10
or two things. One is that I would present
11, to the Board the full texture of the Baskin
12
case, that is the Court of Appeals case, it' s
13
on point. It� supports our position as does
14
the Bennett case. Also a conception of which
15 you are familiar with vested rights , ' we had
16 a building permit here. We had two of them
17
issued, one in March of ' 89 and a reissue in
18 December of ' 89 . Everything we built, which
19 is $176 , 000 advance was advanced on a building
20
permit which was granted by the Building
21 Department. Your Building Inspector stood
22 before you this evening and disagreed with
23 Ms. Ongioni and one very, very important
24 matter. The house he maintains is now legal
25 as it stands. If it is legal and there is no
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legality in any building permit, a part from
3
the arguments that I don' t think that you have
4
the authority to revoke the permit, the fact
5
is that you would have no reason to. Your
6
building inspector has indicated to you,
7
available to question, this building as it
8
stands now is legal.
9
As to the issue of the staircases, I
10
want to clarify this . This is a home where
11
we were working around an existing home. So
12
you asked me last time and I wanted to answer
13
the question that there are here two staircases .
14
There was one which was left and an additional
15
staircase was put in. There are here two
16
oil tanks. There was one that was there for
17
250 . If you want a 500 gallon oil tank, the
18
one way to do it is by putting another 250
19
gallon in. There was a heating unit there
20
because we were doing essentially an addition
21
very much like the existing home. You could
22
pull out the existing heating unit or put in
23
one to handle the whole house or put in an
24
additional unit, a smaller unit. That was
25
what was done. There was a basement. You
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could make a big basement or leave the
3
existing basement and have a second basement.
4
The interrelationship is apparent to you if
5
you saw the house. There is an interrelationship
6
between both floors. The explanation I just
7
offered for the two boilers and two tanks , I
8
think is quite reasonable. I point out to you,
9
as I understand it, there is one electric
10
meter going in this house and there is one
11 hot water heater in this house, not two. The
12
fundamental thing I would like you to consider
13
very carefully here is Number one, get by the
14
issue of your authority. Even assuming you
15 think you did have the authority, think of
16
the issue of investment when someone spent
17 $176 000 which p your inspector told -them -then
18
and now. Think about the fundamental of
19
substantial justice which you are here to do.
20
If you elect grant this variance for the
21 front yard conditionalizing it on some other
22 actions, I would urge you to conditionalize
23 it on those actions which the applicant can
24 take. in fairness , not by ripping out things ,
25 but by the noncompletion of their construction,
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adding or substracting. That and the entire
3
scenario here of a year and a half, of a lot
4
of money, they never built what they didn' t
5
have a permit for. I would like you to consider
6
that and as to the law, please speak to
7
Mr. Arnoff. I will give you a copy of Baskin
8
which is a Court of Appeals case and a copy
9
of Bennett which supports my argument that
10 you cannot look at an art construction in your
11 eyes for its potential future use. The same
12 people who bought the house in 1977 are going
13
to live there. They continue to live there
14
and it' s the same family and whether an
15 alteration may be made, is not fair game
16
for your consideration.
17
One other thing, the decision that you
18 gave me from the town which indicates that,
19 if I read it correctly, that any building
20 containing more than one kitchen and/or kitchen
21 facility shall be deemed a dwelling unit. This
22 concludes more than one kitchen and/or kitchen
23 facility in a one dwelling unit. This is a
24 January ' 88 decision which I wasn't aware of.
25 This is a better interpretation. If you are
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interpreting the same language that we are
3
interpreting, I don't see it says that.
4
More important than that, the fact that, I 'm
5
sure the Board is aware, that there are
6
numerous , numerous places in this town that
7
have two kitchens .
8
HEARING OFFICER: We are say s.ay.i.ng . that the
9
religious purposes . We allow a second kitchen.
10
MR. CARNELLI : But you are aware that there
11 are second kitchens. You have kitchens coming
12
in off the water and corning upstairs.
13
HEARING OFFICER: I know of only one house
14
that was built that way. I know of one and that
15 was the Hardy house.
16 MR. CARNELLI : I know of another.
17
HEARING OFFICER: It must have been put
18 in after the CO or overlooked, but unless it
19
is for religious purposes , that is the only
20
way we are addressing the issue.
21 - MR. CARNELLI : Also, in this regard, we
22 have offered two covenants that we would not
23 use this as a two family house and one final
24 note, we initially said we wouldn' t put in a
25 second 'kitchen, but we want to put the piping in
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for a wet bar. I would assume that a variance
3
not necessary to put a wet bar in in the
4
great room. In your decision, I would ask
5
you to direct the issues of whether or not
6
the wet bar and the great room as configured
7 is permissible because that is actually what
8
started this entire thing.
9
HEARING OFFICER: If there are no further
10 questions or comments --
11 MS . ONGIONI : My client had sent me a
12
letter which he would like me to submit. He
13
is still recuperating from a heart attack.
14
HEARING OFFICER: I just want to say
15 that we are, of course, going to be receiving
16 something from Mr. :Carnelli. We will afford
i7 you a copy of that. I would appreciate if
18 you would come down in a couple of weeks and
19 find out if we received it. We will recess
20 the Hearing tonight in reference to the verbal
21 testimony and close the Hearing pending receipt
22 of other information. Also, a survey we are
23 looking for, the original survey and that is
24 basically what I am going to do at this point.
25 If there are no further comments , I make a
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motion to close this Hearing, the verbal
3
testimony pending receipt of some additional
4
data from Mr. Carnelli. We will close the
5
Hearing in total at the next meeting. All those
6
in favor say aye.
7
BOARD MEMBERS : Aye.
8
9
(Where-upon, the above-mentioned Hearing
10 concluded at 10 : 35 P .M. and another Hearing
11 commenced at 10 : 40 P.M. )
12
13
HEARING OFFICER: Mr. Wagner?
14
MR. WAGNER: John Wagner from Esseks ,
15 Hefter and Angel in Riverhead for Sun
16
Refining and Marketing Company. We are here
17
this evening as a continuation of the Hearing
18 that was commenced on November 1, and I
19
represented at that meeting that. I would have
20 an expert come in the next time who would
21 present testimony on two issues. The first
22 is whether a canopy is an assessory use or an
23 accessory structure to a gasoline station under
24 Southold Town Code and whether or not a so
25 called convenience store is an accessory use
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as defined in the Southold Town Code as to
3
a gasoline ,station. The expert is here this
4
evening and ready to give his testimony.
5
Before I call him up, however, I would
6
like to take care of a few housekeeping matters
7
to more or less complete the record in the
8
matter. I have for one thing a review of the
9
transcript of the last Hearing and I had to
10 make some corrections on the transcript and
11 I have a marked up copy here this evening I
12 would like to resubmit to you. One substance
13
of change in particular, I have to blame myself,
14
on Page 97 of the transcript I made a statement
15 regarding the Hess Station in Mattittick as
16 having a canopy. I was mistaken about that.
17
I was really thinking about the Mobile Station,
18 which was further east on the south side of the
19 road. So I have corrected the transcript to
20 indicate Mobile Station and it applies to a
21 few thousand yards down the road.
22 The second thing that I have done over
23 the past month, I have ordered a single
24 and separate search of the property once again
25 to complete the record of this matter. I do
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have it here tonight and I would like to hand
3
the original up to the Board.
4
HEARING OFFICER: Fine.
5
MR. WAGNER: I would also like the
6
Board to have a few of our documents in case
7
they are not already in one of the several
8
files on this matter over the passed few
9
years. The first is the deed for the property
10
as recorded at Libre 6563 Page 542 , the deed
11
from Mdttituck Shopping Center, Inc. to
12
Art Prop. Inc. and it is dated June 5th, 1969 .
13
N The second thing I would like to give you is
14
a copy of the special exception approval , which
15 was issued for the original gas station use
16
established on the property. This dates
17
back to January 2nd of 1969 on the original
18
application. Excuse me. That is the date
19
of the actual determination itself. It was
20
Appeal Number 12225. The last thing I would
21 like you to have is a Certificate of Occupancy
22 for the property which was dated August 28 ,
23 1970 which I alluded to previously, but I had
24 not supplied you a ° copy of it.
25 Some of the things we are going to be
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discussing tonight involves the definitions
3
of the accessory building or structure,
4
accessory use and principal use as contained
5
in the Southold Town Code. So for your
6
assistance, I have duplicated the copies
7
of those definitions so you may have them
8
in front of you as you hear the testimony
9
before you. Rather than waste anymore time,
10 I have also duplicated a copy of Section 100-
11 101 Subsection C of the General Business
12
Section of the Code. This is the section
13
that provides for accessory uses allowed
14
in that particular zoning district and the
15 structure of the section is such as it
16 refers outward to Section 100-31C 1 through 8
17 of the Agricultural Conservation District
18 for the specific uses . I have duplicated
19 not only Section 100-101, but also the
20 referred to section 100-31.. I have two copies
21 of each of these for you.
22 At this point I would like to call
23 Mr. Roderick Green, who is the ex-ert I
24 promised to you the last time we were here.
25 Would you state your name for the record.
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MR. GREEN: Roderick S. Green, Jr. ,
3
residing at 36 Rampasture Road, Hampton Bays ,
4
New York, 11946.
5
MR. WAGNER: What is your occupation,
6
Mr. Green?
MR. GREEN: I am a licensed real estate
8
broker and a practicing appraiser. I have
9 been so for the past 18 years . I maintain
10 my office in the Village of Southampton,
11 New York
12 MR. WAGNER.: By whom are you employed?
13
MR. GREEN: I am employed by and I am
14
the Vice President of the Morley Agency, Inc.
15 located in Southampton.
16 MR. WAGNER: In your work as a broker,
17 appraiser, do you have occasion to appraise
18 commercial or residential properties?
19 MR. GREEN: I do.
20 MR. WAGNER: I would like to show you a
21 document and ask if you recognize it.
22 MR. GREEN: Those are my preprinted
23 qualifications as an appraiser: I normally
24 attach them to a report and submit- them for
25 things such as this.
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MR. WAGNER: With your permission, I
3
would like to submit such a copy to this
4
Board.
5
By virtue of your employment, are you
6
particularly familiar with the various
7
gas station uses in Suffolk County?
8
MR. GREEN: Yes .
9
MR. WAGNER: Are you familiar with
10
the B General Business Zoning District of
11 the Town of Southold?
12
MR. GREEN: Yes, I am.
13
MR. WAGNER: Are you familiar
14
with the various principal and accessory
15 uses permitted in that district?
16 MR. GREEN: Yes. I have reviewed that
17
section of the ordinance.
18
MR. WAGNER: Are you familiar with the
19
definitions of principal use, accessory use
20
and accessory building or structure contained
21 in Section 100-13 of the Southampton Zoning Code?
22 MR. GREEN: Yes . I have reviewed them.
23 MR. WAGNER: Are you familiar with the
24 property that is the subject of this
25 application?
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MR. GREEN: Yes. I have inspected it.
3
MR. WAGNER: Do you have an opinion as
4
to what is the principal use of the property
5
as defined in the Southold Town Code?
6
MR. GREEN: It' s a gasoline service
station.
8
MR. WAGNER: Did there come a time when
9
I asked you to perform a task in connection
10 with this application?
11 MR. GREEN: Yes, you did.
12 MR. V7AGNER: What was that task?
13
MR. GREEN: Well, you asked me %- make
14
a survey including photography of existing
15 service stations on Long Island' s east end
16 to determine your visual and customary accessory
17 uses as defined in the ordinance incidental
18 to the operation of a service station. You
19 also asked me to study the customary and usual
20 accessory structures utilized in the current
21 operations of the service stations. I
22 examined service stations from eastern Brookhaven,
23 the Town of Southampton, Easthampton,
24 Riverhead and Southold. Since there were two
25 basic areas of discussion, I separated the
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photographs that were taken into those which
3
showed service stations with additional
4
accessory use or uses as evidenced on
5
inspection. There is another set of photographs
6
which show gasoline stations that are equipped
with canopies connected to a building or in
8
every case covering the pump island.
9
MR. WAGNER: Would you have a copy of
10 those compilations?
11 MR. GREEN: I do have them, if I may
12
submit them at the appropriate time.
13
MR. WAGNER: It might be helpful if I
14
reviewed them and you can use my copy.
15
MR. GREEN: I had a few other comments .
16 It might be helpful for the Board.
17 In accomplishing the assignment that was
18 given to me by Mr. Wagner, I think it' s fair
19 to look at in terms of accessory uses just
20 -to briefly look at the history of origin of
21 automobile filling stations . The early filling
22 stations were typically accessory to a general
23 store in the rural areas or an accessory to
24 a vehicle dealer in the horse and buggy days.
25 As time went on, we saw that followed by the
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franchised automobile dealer who frequently
3
sold gasoline. Then we saw a development of
4
the traditional service station as we tended
5
to know it from the thirties , forties , fifties
6
and even into the nineteen seventies where
7
the primary function or primary use of such
8
a service station was the sale of gasoline
9
and petroleum products. The accessory use was
10 the repair of automobiles, the sale of
11 accessories , automotive accessories . As
12 time went on, this servicing of automobiles
13
changed with the complexity of automobiles.
14
Some service functions can only be efficiently
15 constructed by a dealer requiring expertise
16 in terms of technical ability and also equipment
17 required. Some of the other simpler, less
18 demanding requirements have been transferred
19 to the specialists , such as the muffler shops,
20 the tire dealer and front end specialists , the
21 lubrication specialists , Jiffy Lube as an
22 example. With these changes in the market
23 and the servicing of automobiles , we have
24 witnessed the decline in the service aspects
25
as the accessory use. We now see the convenience
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store which emerged in the south and first
3
in the seventies according to the research
4
that I have made, but now we have sort of
5
come full circle. We have reversed the earlier
6
configuration where fuel stations were the
7
accessory used to the general store to the
point where now the convenience store has
9
become the popular accessory use for the
10 gasoline filling store. I say filling station
11 because they' re not service stations as we
12 traditionally know. I think filling station
13
is a more appropriate term. The primary
14
function is the storage, pumping and sale
15 of gasoline and we see throughout the town
16 a number of other accessory uses that exist.
17 The sale of not only convenience items , but
18 we see fuel oil as an accessory use. With
19 certain service stations or filling stations ,
20 we see other items that are sold. If I
21 may submit this, I have one copy for the
22 Board regrettably because we were running
23 short of the photographs due to the overlap
24 with those of canopies and those existing
25 multiple or single accessory uses in addition
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to the service stations . I have one for
3
Mr. Wagner, one for the Board and a photocopy
4
for myself, if I may present this to the Board.
5
HEARING OFFICER: Thank you, sir.
6
MR. WAGNER: There are photographs contained
in this report. Did you personally take those
8
photographs?
9
MR. GREEN: I took them and I so indicated
10 on Page 1 and the dates on which they were
11 taken.
12 MR. WAGNER: Would you say that these
13
photographs are fair and accurate depictions
14 of the various subjects of these photos?
15 MR. GREEN: Yes , I do.
16 Just to briefly cruise the report, the
17 first photograph is from a former filling
18 station from the nineteen twenties indicating,
19 of course, there you have multiple use in that
20 I think it is fair to say service stations
21 as we knew they were automatically multiple
22 use or accessory use combined with a principle
23 use back even then. I would say the principle
24 use was the pumping of gasoline. You can see
25 to the right as you view the photograph, there
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is also a repair garage. Another one, Alex
3
Mezorakis Garage in East Moriches , that dates
4
from the twenties. ' He has owned it for the
5 last forty years . I should say the pumps have
6
been removed on the first two, victim of the
increased requirements now that the costly
8
fiberglass tanks that must be installed. In
9
Center Moriches you see a situation where there
10 is a large convenience store here. In this
11 case it' s a deli, but the original function and
12 I think the original building to the right was
13
a filling station going back probably to the
14
nineteen thirties. Something similar with
15 multiple uses , this is a convenience ' store.
16 There is a repair garage repairing transmissions
17 in addition to pumping gasoline at the service
18 station located on Montauk Highway east of
19 the railroad overpass in Center Moriches . The
20 next is an example of a more recent construction.
21 This is a mobile filling station with a canopy
22 and convenience food on the Manorville Road
23 adjoining the Long Island Expressway. The
24 Riverhead Car Wash providing service, auto
25 service, in terms of the car wash both a self
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service and a service operation. We have
3
a convenience store that is an accessory to
4
the primary use of automobile service. The
5
Hess filling station in Riverhead is again,
6
a late example of the convenience store as
7
an accessory use to a filling station. There
8
is no repair conducted. The house mart name
9
is clearly marked on the convenience store.
10 The Shell Food Mart in Riverhead, the Route 24
11 circle is a filling station. It also has
12
sizable convenience store. The Metor Filling
13
Station in Flanders, that is a limited
14
convenience store with a filling station and
15 most of the new units as you will see now and
16 also in the next photographic presentation,
17 most have canopies. We have in Hampton Bays
18 the most recently constructed unit in the
19 Town of Southampton, a filling station, an
20 Amoco Station with a convenience store. It
21 opened the spring of 1990 . We have one
22 several years of age in the Village of
23 Southampton, a Mobile Filling Station with a
24 convenience store on Route 39 and North Sea
25 Road. The next is a Gulf station directly
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across the street limited to convenience
3
food and a filling station. The next
4
photograph is of an Enzines Mobile Service
5
Station on Tull Street in the Village of
6
Southampton. This has existed with multiple
7
uses, . accessory uses , although the primary
8
use is an automobile filling station. There
9
is a canopy that was installed prior to 1927.
10 There is a photograph of the building in 1927
11 on display in the showroom. Also, there is
12 an automobile repair garage. Fuel oil and
13 kerosine sales have been conducted there
14 for many years as accessory uses. In Water Mill
15 there is an Amoco Filling Station with a
16 canopy and also convenience food. It was the
17 first convenience food store constructed in
18 an Amoco Station owned by the local distributors ,
19 Strong Oil Company. That is approximately eight
20 years old, the convenience store. Similar
21 the same ownership on the next Amoco in
22 Amagansett, there is a repair garage operating
23 in conjunction with the filling station. In
24 Montauk there is a small former Getty Service
25 Station presently vacant and offered for a lease.
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It has a canopy and a repair garage. The
3
repair garage being accessory to the filling
4
station. Then in the Town of Southold, we
5
begin at Peconic with a Mobile Filling Station
6
with a convenience store. In Orient, you have
7
something that 'is more typical of the older
8
building and rural area, particularly a small
9
community such as Orient where you have a..:.number
10 of uses . The primary use is still the
11 automobile filling station. In addition to
12 it, there is a repair garage, convenience food,
13
they sell ice and fish bait, fuel oil and
14 kerosene. In Greenport, Hispano ` s Repair Garage,
15 that had been a service station and repair
16 garage. The pumps were removed early in 1990
17 according to the owner when I spoke to him
18 yesterday. In Greenport we have the Atlantic
19 Filling Station with a convenience food store
20 as an accessory use. In Mattituck, there is
21 the Mobile Filling Station with a convenience
22 food store. In .Mattituck, the Sunoco Service
23 Station with gasoline sales.
24 quickly, this is the subject property with
25 a bay devoted to a quick lube, the center bay to
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auto repair and the third bay to an automated
3
car wash. That is a structure that was
4
perfectly typical for its age, ' 69 or 170 ,
5
thereabouts. Then in Mattituck, there is
6
another example of a three bay service
7
station that is now operating as a filling
8
station and Texaco Gas Mart, convenience food
9
and the last photograph is the Atlantic Filling
10
Station in Jamesport offering convenience
11 food in a preexisting service station.
12
I also, in my investigation, have had
13
an opportunity to discuss service stations
14
with David Hawk who, I believe, is Vice-
15 president and part owner of Strong Oil Company.
16 They are the Amoco distributor for the east
17 end of among Island. They own and operate four.
18 retail service stations or filling stations
19 David Hawk is also a member of the Amoco
20 National Advisory Board on station design.
21 So he was able to shed light on not only what
22 he has done on the four stations that he owns
23 on the east end of Long Island, but also on
24 what Amoco is doing in general from his
25 perspective as a member of their National Board.
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Of the four stations that he owns and operates ,
3
all of them are canopied and two of them
4
presently have convenience food, that is
5
-the original one in water Mill, the most
6
recently constructed one in Hampton Bays.
7
He will be very shortly constructing a
8
convenience food store or convenience store
9
in Riverhead on Route 58 . The only remaining
10
unit in Amagansett is presently occupied as
11
a repair garage and that probably will continue.
12
The indication is he would not build a station,
13
a new station either without a canopy or without
14
a convenience store. It has been the age old
15 problem for any person in business trying to
16
compete, if you find others around you with
17
what appears to be a competitive edge providing
18
additional service and appeal to the market
19
that the convenience store has done, you' re
20
almost at necessity forced to do it. In each
21 case, in each case for David Hawk at least,
22 the two convenience stores he operates, both
23 show revenues from -the convenience stores of
24 approximately l00 of overall sales. Also
25 the indication from him was that is typical for
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Amoco stations in general that operate
3
convenience stores as an accessory. I submit
4
that only to indicate that it is my belief
5
based on my research that the convenience store
6
is clearly an accessory use. it is not a dual
7
principal use. It is not a shared use. It
8
is clearly accessory. Also, I did have an
9
opportunity to review a prior affidavit to this
10
Board dated 1988 in connection with the Tarton
11
Oil Corporation application in which Barry .
12
Towering, the President of Tarton Oil indicated
13
in the affidavit that there were in 1988 in
14
excess of 55, 000 convenience stores nationwide
15 and I think we have to agree that this is not
16 a brand new phenomena. They have been around.
17
They are certainly growing. The convenience
18 store apparently fills a need. It' s well
19
accepted in the market. Many of them function
20
in the off hours when restaurants are closed
21 and they become the sole source of food,
22 particularly for night workers who have meal
23 breaks three-and four in the morning. Also,
24 for emergency workers who have no where else
25 to acquire food or convenience items and also even
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for families where illness is a problem, in need
3
of an aspirin or an analgesic in the middle
4
of the night. I think it is fair to say the
5
vendor is becoming necessary from the standpoint
6
of the operator in order to become competitive,
7
it also fulfills the expectation of the consumer.
8
The consumer is increasingly coming to expect
9
such an operation if it possibly can be provided
10 and there are certainly cases if you were next
11 door to a convenience store it might not be
12
appropriate. If its not the case, I think
13
its certainly the way of the future.
14
Another consideration in my reading, I had
15 occasion to review the Building Evaluation
16 Manual by and to the Commercial Manual and the
17 indication when they were published in 1977 ,
18 the typical life expectancy of a service station
19 building ran between 15 and 25 years . In
20 talking to representatives from the applicant,
21 that still apparently holds true and it gives
22 rise to large investments, well maintained
23 property. I think the photograph of the
24 subject property does speak for itself. It' s
25 clean. It' s well maintained. There are no
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derelict automobiles around. It' s certainly
3
as fine a station physically as you' ll find
4
typically anywhere in America, but here, it' s
5
simply something that has to be updated
6
constantly. ' It' s part .of the competition in
7 the industry and for that reason they are
8
constantly upgraded or at least changed whether
9
you and I feel they are upgraded, the effort
10 is made to maintain the competitiveness
11 required in the industry. With respect to
12 the sales, another interesting note in
13
establishing the accessory character of
14
the C Store also came from one of the files
15 of this Board. Back to 1988 there were sales
16 for the two days of the Peconic Mobile
17 Station. They showed the sales for February
18 16th, 1988 and also February 17th, )1988 .
19 If I may submit this to the Board, it is from
20 your own record that the indication is that the
21 sales from the convenience store are
22 approXimately 10% of the overall, again, in
23 line with what I have been told by the local
24 distributors and also its in line with my
25 conversations with the applicant as to what their
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expectations are in general.
3
The next area to discuss Very briefly is
4
the use of the canopy as a customary accessory
5
structure that is an item that also had its
6
origin in the nineteen twenties and if I may
7
submit this to the Board, this again is a very
8
similar photographic presentation. The
9
photographs were taken and exposed by myself
10 on the dates indicated, November 27th to 29th
11 and I think each is an accurate representation
12
or depiction of the particular station view.
13
There is a certain overlapping. Some .:. ..
14
photographs will repeat and appear in both
15 booklets simply because they demonstrate the
16
other item in question. There are photographs
17
in there of properties that do date back to
18
the nineteen twenties . What does the canopy
19 provide, I think essentially it' s a shelter
20 from the elements . That was something that
21 fell from favor by the late nineteen thirties .
22 We didn't see much of it in the forties, fifties
23 and sixties and it began to reappear, I am told,
24 in the south in the early seventies. It didn' t
25 make its appearance in this part of the country.
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until late in the seventies. It also coincided
3
down south with the advent of the self service
4
gas station and it provided not only, of course,
5
for the service station, it was a shelter for
6
the clerk who would be pumping gasoline but in
7
the beginnings and even to this very day, it' s
8
shelter for -the customer, the consumer who
9
has popularized certainly the acceptance of
10
self service. Consumers have voted with
11 their dollars and it' s the reason why we see
12
them throughout the country. I have seen, in
13
my own experience, I 've seen them all over
14
Long Island, I have seen them in New England,
15 throughout Florida. They are quite typical
16 for instance on turnpikes. I 've traveled the
17 entire length of the Ohio Turnpike and also
18
the Indiana Turnpike. Each and every service
19 facility is equipped with a canopy. The
20
canopy also, I think, provides a certain
21 measure of security in that they are not only
22 well lighted, but the light is of a sufficient
23 height that it is a bright overall , almost
24 shadow free illumination. I couldn' t help
25 but notice -that traveling the main road this
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evening and noticed how well lighted those.
3
stations were, particularly from the standpoint
4
of the frail, the elderly or women who are
5
concerned .about being alone in that type
6
situation: I think this, again, it is more
7
common sense than anything- else and I. don't
8
mean to belabor this, but certainly I 've
9
come to these conclusions that the vendor is
10 increasingly a customary accessory use and it is
11 an expectation of the motorist. It is a
12
requirement from the operator' s standpoint in
13
terms of meeting the competition and where
14
such stations do exist and they do exist in
15 the Town of Southold, it seems virtually a
16,
necessity for a successful operator to meet '
17
his competition. The canopy covered stations
18 are usual and customary. They are increasing
19 day by day. From all I 've been .able to learn,
20 both discussing it with the Amoco distributor
21 and also discussing it with Sun, the major
22 oil companies are not building any other kind
23 and virtually all the renovation efforts that
24 are going into existing. stations are to. install
25 canopies over the pumping islands frequently
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combined with the accessory use of a convenience
3
store.
4
The last item while it is difficult to
5
quantify, : but :.the ..inability..for .an owner or
6
operator of such a service. station to either
7
construct such a canopy or to operate a
8
convenience store if the market demand is there,
9
certainly has a negative effect on value. While
10
it may be difficult to quantify it, certainly
11 one would pay more for a site where such approval
12
were a matter of right as opposed to one where
13
such approvals would be prohibited.
14
So I conclude my comments to you. I stand
15 ready to answer any questions you may have or
16 \
Mr. Wagner or anyone in attendance.
17
MR. WAGNER: I have one or two questions
18 for him.
19
HEARING OFFICER: I want to mention to
20
you we do have a time constraint and I would
21 like to wrap this up by a quarter after, if
22 we could.
23 MR. WAGNER: Mr. Green, you testified as
24 to convenience stores being accessory to
25 gasoline stations . Would you say as a rule
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they are customarily incidental or subordinate
3
as to a gasoline function at the station?
4
MR. GREEN: Yes.
5
MR. WAGNER: They are not there on a
6
par with the gasoline filling station?
7 MR. GREEN: No. I mentioned earlier it
8 is not a dual principal use. It ' s clearly
9
accessory: It' s subordinate and I think it' s
10 subordinate to the degree that the sales figures
11 give us some indication as to sales volume.
12 MR. WAGNER: That is the only question I have
13 HEARING OFFICER: M only
y question may not
14 be presented to Mr. Green, but more for you,
15 Mr. Wagner, and that is to what degree, if the
16 Board is so inclined, what degree will this
17 accessory use of food retail sales involve? In
18 other words , will it be a prepackaged food
19 or more on the deli type of a use?
20 MR. WAGNER: Fortunate for us tonight, we
21 have with us Jack Wernari, who ..is a member of
22 sales arm of Sunoco who will describe in great
23 detail what that will involve.
24 MR. WERNARI : I will hit your point right
25 on the head. Our franchise program, which every
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store is the same on the inside, we have a
3
six foot deli case, a slicing machine and
4
a scale unless we are prohibited by the Board
5
and they ask us to covenant that and it is
6
a discussion amongst the sales force and the
7
marketing department that will ,make that
8
determination.
9
HEARING OFFICER: What are you limited
10
to if we prohibit that?
11
MR. WERNARI : I have a location here on
12
Long Island that we simply have to go out and
13
have packaged sandwiches , premade where there
14
is no slicing or any way of the bulk cold cuts
15
and able to be distributed over the counter.
16
HEARING OFFICER: Such as Oscar Meyer
17
or something like that?
18
MR. WERNARI : That' s right. That is
19 at one location out of the 300.
20 MR. WAGNER: Do you have any estimate
21 for what percentage of sales are taken up
22 by the deli side of it?
23 MR. WERNARI : Yes. From a low of 50 of
24 total monthly store sales to 60 . It is
25 not a major function of a convenience store
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itself as far as monthly sales and grocery
3
items.
4
MR. WAGNER: Can you describe what other
5
type of items you offer for sale?
6
MR. WERNARI : Sure. Dairy products ,
7
milk, eggs, all soft drinks, we normally
8
have a hot dog machine, fountain soda machine,
9
grocery items from candy goods , packaged goods,
10
candy section, newspapers , coffee for the
11
morning and rolls and doughnuts and that
12
type of thing. Again, I mentioned most of
13
our locations do have deli cases and a cash
14
register system where one cash register
15
designated to also handle the gasoline
16
purchases. The customer for the gasoline
17
would come inside the store, pays for that
18
product and we have the system set up for the
19
gasoline pumps to dispense that to the car
20
and have the ability to purchase products
21
inside while they are waiting.
22
HEARING OFFICER: My only question in
23
reference to that is; this appears to be
24
truly a convenience item for the person
25
purchasing gasoline. At what point on a
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percentage basis does it actually become a
3
second primary use? In other words , do you
4
have gas stations where the sale of food
5
actually somewhat levels off the sale of
6
gasoline?
7
MR. WERNARI : No. Not even close.
8
I think you mentioned and we had discussed
9
that a little bit earlier. I gave him an
10
extreme example of our top location on
11 Long Island that is in Amityville on Route
12
110 in the heart of the town and the closest
13
scenario is that-the .gasoline sales are four
14
times the sales on a monthly basis , of
15 grocery sales as compared to dollar amounts
16
of total gasoline sales.
17
MR. DOYEN: How much is the bottom line?
18
Which one pays the most?
19
MR. WERNARI : Well-, again, from the company'
20
standpoint of Sun Oil Company, obviously the
21 gasoline pays the most. That is where our
22 margin is as in oil company. As an independent
23 franchise or dealer, basically it is the
24 same function. They obviously have a secondary
25 income coming from the grocery items and the
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sale of the gasoline is the primary function
3
to bring the customer into the store.
4
MR. WAGNER: That is also the business of
5
Sun; is that correct?
6
MR. WERNARI : Yes.
7
HEARING OFFICER: You probably just
8
answered this question, but truthfully, why
9
would somebody want a convenience store aside
10
from the fact that Mr. Green says it' s now in --
11 MR. WAGNER: A retailer or a customer?
12
HEAPING OFFICER: A customer.
13
MR. WERNARI : The word convenience simply
14
entitles them to come into a service station.
15 The normal function is to buy gas once or twice
16 a week and also the ability to purchase a
17. product like milk, eggs , bread, candy, soda,
18 beer on their way home instead of having
19 to make several stops and the ease of that
20 transaction, they're spending three minutes
21 at a service station, at a pump, they have to
22 come into the location and pay for the product.
23 They pick up a secondary item to take home and
24 90% of the time the excessive cost in there
25 is their so called convenience and that' s what
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they pay the additional amounts for.
3
HEARING OFFICER: How about from the
4
franchisee ' s point of view?
5
MR. WERNARI : From the franchisee' s
6
point of view, we have dealers that are
7
at the location in this particular case,
8
the .;..existing. dealer was there for 11 or 12
9
years is staying on. He was a mechanic. He
10 no longer wants that end of the business.
11 he simply has addressed the fact that he
12
is going to pay a substantial amount of money
13
for a franchise and have a convenience store
14
franchise fee, a cleaner operation for
15 himself and also the ability to make 'the
16 increased profit for himself through a
17 convenience store offering.
18 HEARING OFFICER: Certainly, the utilization
19 of existing square footage.
20
MR. WERNARI : That ' s right. He will
21 obviously also, again, getting back to the
22 point about the gasoline, if this offering
23 is something that the public has grasped
24 and enhanced, it' s going to increase his own
25 gasoline sales. Thereby, the reflection of that,
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he makes the gasoline profit and as the oil
3
company, again, we are having an increased
4
volume through that location.
5
HEARING OFFICER: The only other question
6
I have, Mr. Wagner, is similar to the question
7
that we just asked, why the canopy, a part
8
from it is a 1980 in vogue .thing?
9
MR. WAGNER: 1990 .
10 HEARING OFFICER: - 80 , - 90 . I want to
11 give you an idea. We have had people come
12 before us telling us the only reason why they
13
built a canopy was to support the suppression
14
system and I do not buy that. I have seen
15 suppression systems very accurately done without
16
canopies.
17 MR— WAGNER: Right. In fact, I reviewed
18 the file of your Board in which that repre-
19 sentation was made and I would like to make
20 the representation to you that the canopy is
21 absolutely essential because of the fire
22 suppression element, but it is true that the
23 adequate suppression system can be designed
24 without designing it in the canopy. In fact,
25 the one that is proposed is not in the canopy
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and it is probably a safer way of doing it
3
because the fire suppression elements, the
4
sensors and also the extinguishing elements
5
are closer to the mat where any fire would
6
break out. Anything up in .the canopy where
7
it is feasible to design such a thing, is
8
further away from the low cuts of whatever
9
problem develops. I cannot represent to you
10
that the canopy is necessary for that. The
11 canopy is necessary as we described to protect
12 from the elements on a rainy night, especially
13
when people are out self-serving themselves
14
to be assured that they will be somehow
15 protected. A lot of people have a little bit
16 of a problem with self-serving gas. They get
17
frassled a little bit. The pumps don' t work
18
properly and rather than be distressed by the
19 fact that they are getting wet in the process ,
20 we provide a little assurance for them, a
21 little protection so they can keep their heads
22 cool and do whatever they have to do.
23 In addition, you want to also think of
24 it in terms of the marketing standpoint which
25 I described to you earlier. It ' s become a
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competitive necessity nowadays for a canopy to
3
be there. It provides a certain psychological
4
assurance for them, so to speak, for people
5
coming on to the site when they see the canopy,
6
especially when the weather is bad. They
7
are more inclined to go to a station that has
8
some protection than run out in the rain, such
9
as current site is right now. I am not
10
going to try to kid you that we could not
11 build the site without a canopy. It could be
12
built without a canopy, but it would place the
13
applicant at a severe competitive disadvantage.
14
HEARING OFFICER: Why not put a canopy
15 over the existing situation as it stands right
16 now?
17 MR. WAGNER: I do not think that would
18 be in the interest of the town. One of the
19
things that we are doing is relocating the
20
gas pumps, bringing the pumps back from the
21 road somewhat and I think part of the reason
22 for doing that is not only to bring the
23 dispensers closer to the underground storage
24 tanks, but also to provide enough space so there
25 is a reasonable front yard for the canopy from
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the road. Now., the canopy itself is not
3
your typical - structure because it doesn't
4
have a footprint on the ground. It has
5
a shadow on the ground, but not a footprint.
6
So it doesn' t provide any kind of a visual
obstruction. As I tried to explain at the
8
last Hearing in -that respect, there is a sort
9
of public benefit to be derived from enforcing
10 the strict set back requirements . You are
11 not having any problem with site distance
12
around the corner and really to apply two 50 foot
13
front yards on this property is excessive-
14
and as you can see from the exhibits I handed
15 you last time, when you apply those set:)backs
16 there is no room for a canopy. We have all
17 the problems that we had just described, open
18 air filling stations, we have psychological
19 depression of the client that wants to come
20 into the property and not finding it to be
21 sheltered in the rain. Apart from that,
22 I am not going to represent anything about
23 fire suppression because it is not true.
24 HEARING OFFICER: Mr. Green, you have
25 given us a substantial amount of pictures. My
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only concern is that this is a corner piece
3
of property. It is a very busy area. It
4
also is somewhat attractive. It' s coiling into
5
town. Is there some indication. in the way
6
of a picture that you could afford us from
7
Mr. Green or somebody from Sun Oil similar
8
to what we could see other than a blue,.Drint
9
of what this station would look like assuming
10 it was completed. We are primarily concerned
11 with the canopy at this point. I am concerned
12 about what the canopy looks like and I should
13
point out to you , this Board never did nor would
14 it ever in my 'estimation as I said here before,
15 ever nave granted the Mobile Oil Station on
16 the east side.
17 MR. WAGNER: That has a two foot set back.
18 HEARING OFFICER: That canopy is very,
19 very close to overhead power lines. It is
20 still the nature of an adjudicated lawsuit
21 which we have come to' some amiable results .
22 However, this gentleman has still not come
23 back and filed the necessary application with
24 the Board and it happened overnight. It was
25 certainly a situation that occurred. I will not
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read into the record the frustration I have
3
had over it. I will leave it to a more
4
appropriate time, but it happened.
5
MR. WAGNER: That canopy, although it is
6
at the present time illegal and will probably
remain so until some modification is made,
8
is a good source of comparison to what we
9
are trying to do. That canopy is only set
10 back two feet from the property line. We
11 by contrast are 29 feet back. In addition,
12 that canopy does not conform to the height
13
requirements. I believe it is 19 feet high
14 so it is over the limit for an accessory
15 structure which is 18 feet. We are proposing
16 to build within the limits. We are seventeen
17 some odd feet but we are still conforming.
18 Apart from the canopy, if you look at the
19 diagram, they basically look much the same.
20 The thing we tried to do is to have a canopy
21 that is functional and yet reduce the amount
22 of relief we require from your Board. We
23 looked at it. We found that 29 feet was the
24 maximum we could go back and still cover the
25 pump area. The pump area can't be moved any
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further back without being in the preexisting
3
building itself and not allowing turning
4
distance for people going thrbugh .'the pumps and
5
having to swing around to get back out of
6
the property again.
7
MR. WERNARI : Would you like pictures?
8
HEARING OFFICER: Could you please?
9
MR. WERNARI : I can supply you with
10
pictures within ten days.
11 MR. WAGNER: I believe we have two
12
operating stations on the Island run by
13
Sunoco.
14
HEARING OFFICER: I want to know the
15 density or the height of the canopy and how
16
it will look from a wide angle shot coining down.
17
MR. WAGNER: I am going to try to move
18
to the left. I know we are running on overtime,
19
but i will try to breeze through it for you.
20
I have in addition to Mr. Green' s analysis
21 some data that was supplied to me by Mr. Dwyer
22 who I also asked to go out and do some snooping
23 around Smithtown and Islip and he was able
24 to take some photographs and we prepared a
25 summary cover sheet describing each of the
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stations ".in, question and annexed to that
3
summary and cover sheet our photographs of
4
the various sites and they are all cross
5
indexed. I am going to ask him to come up
6
for a moment.
7
I show you two documents . One is
8
entitled, "Examples . of gasoline facilities
9
of accessory convenience stores, " and the
10 other one is entitled, "Examples of gasoline
11 facilities with accessory canopies . " Do you
12
recognize the date on that?
13
MR. DWYER: Yes, I do.
14
MR. WAGNER: There are photographs attached
15 to the two documents. Do you recognize those?
16 MR. DWYER: Yes, I do. Those are the
17 photographs that I -cook on Tuesday and
18 Wednesday of this week at locations in the
19 Town of Brookhaven, Islip and Smithtown.
20 MR. WAGNER: Are those photographs fair
21 and accurate representations of the scenes
22 depicted?
23 MR. DWYER: Yes. I would say so.
24 MR. WAGNER: Thank you very much.
25 I would like to submit both of those to
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Board and you can peruse them at your leisure.
3
The, purpose of this exhibit is to give
4
you a broader scope of your consideration.
5
As I am sure you appreciate the east end.
6
is its ,own world.
7
MR. DWYER: I would just like to add in
8
the drawings we submitted to the Planning
9
Board-, we did provide an elevation drawing
10 that shows . the elevation of the canopy 'and if
11 you would like such a drawing, it -will be.
12 provided. for you.
13
HEARING OFFICER: It ,is very important
14 from the point of -fire access and the ability
15 to fill fire vehicles. At present, we have
16 to extract our tanks -in Mattituck 'at our
17 site on .Pipe Street and we will be doing .that
18 before the first,..of :..the`=:y_ear. I am not
19 speaking for the Mattituck Fire Department.
20 I am merely a member of the Mattituck Fire
21 Department so it is our concern.
22 MR. DWYER: The canopy is 14 feet from
23 ground to bottom of the facier of the
24 canopy and the facier is three feet high
25 itself which makes a total height of 17 . There
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is a clearance of 14 below the canopy and
3
our delivery truck will be traveling underneath
4
that canopy to give you an idea of the height
5
of the canopy-
6
HEARING OFFICER: Do you happen to know
7
how high your hook and ladder is?
8
MR. DINIZIO: It is not 14 feet.
9
MR. WAGNER: Just to complete the record,
10 I need to recite to you a prior decision
11 of your Board which is Field No. 3618 in
12
the name of Sukru Ilgin and Mike Peksen
13
doing business as Ocean Holding Corp. This
14
is a decision. I will just describe it to you
15 briefly. It was an application for 'a
16
variance from the now defunct section of
17
the Zoning Ordinance, Section 100-52 which
18
was a shopping center provision and apparently
19 interpretations were being made a few years
20 ago that a convenience store combined with
21 a gas station a shopping center made and a
22 variance was necessary to get out from under
23 the 40 , 000 square feet lot area requirement
24 that was contained in that section. In this
25 particular case, the applicant had a lot area
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of 11,984 square feet and they applied
3
for a variance of Section 100-52 which they
4
were granted. So they went from 40 , 000 square
5
feet down to 11, 984 square feet. I worked
6
out the magnitude of that variance for you
7
That works out to about a 72 . 5% variance all
8
totalled. Now, the other interesting thing
9
about this decision is that it evidences that
10
the Board at least at that time was recognizing
11
that it was possible to conduct.- this kind of
12 convenience store use as an accessory
13
use to a gas station. In fact, the decision
14
conditioned the approval upon the operation
15
as such. It was conditioned upon the operation
16
of the convenience store accessory and
17
incidental to the gas station use and that
18
is precisely what we are trying to do here.
19 There is no intention to convert this into
20
the principal use. I realize it is a different
21 section of the code, but the principals
22 of accessory use and the interplay of principal
23 and accessory use are very much the same. That
24 is why I decided to recite it to you tonight.
25 If the Board is amenable to granting some relief
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on this application, I would suggest you might .
3
insert a similar condition that would maintain
4
the control that the Board seems to want to have
5
over these uses. In fact, that also answers
6
the question that the Planning Board has
7
raised in the memorandum that they submitted
8
to the Board arguing against this kind of
9
relief. They are concerned the use could get
10
out of control. There could be two principal
11 uses there, that a convenience store could
12
have actually go out of business and something
13
else such as a -cape rental place could be
14
placed there instead. You can control that
15
by conditions in your decision and, in
16
addition, I do not think your Zoning Code
17
would allow that kind of replacement because
18
no one has ever demonstrated that a tape
19 rental place or any other business besides
20
a convenience store is customarily incidental
21 and subordinate to a gasoline station use.
22 We have tried to make that showing tonight
23
with respect to a convenience store.
24 Let me sum up where our application
25 stands. Our principal contention for the
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convenience store, part of the application
3
is that it does not as we proposed to operate
4
it, constitute a separate principal use on
5
the subject property, rather as an accessory
6
use. We are therefore calling for an
7
interpretation from the Board that the
8
60 , 000 square feet required by the bulk
9
schedule, for two separate principal uses in
10
the B General Business District does not apply.
11 The building inspector chose to apply that
12
standard. That is why we are here before you.
13
We believe that because under such an inter-
14
pretation, the applicant could undertake
15 the proposed gas station an accessory
16
convenience store use because basically it
17
involved only a substitution of one accessory
18 use for another, that is the convenience store
19 or the service facility as they are presently
20 in the existing structure. We also believe
21 that because we have just a simple one to one
22 substitution, that we could conduct that as
23 a right being as we have a single and separate
24 parcel. That is part of the reason I submitted
25 the single and separate abstract view to
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demonstrate that. Under Section 100-244
3
of -the Town Code there was a right to use
4
a substandard parcel, not that we are trying
5
to get away with anything extreme. When the
6
parcel in question was created, there was only
7
a 7500 square foot minimum lot size standard
8
in force. That was pursuant to 1965 and 1966
9
Zoning Codes . There was a revision of the
10 Zoning Code in November 1971 that raised that
11 standard to 30 , 000 square feet, a big jump
12 from 7500 up. We had a substantially oversized
13
lot to begin with, 24 , 000 some odd feet and
14
suddenly we were substandard.
15 I have to address one last item and that
16
is if for some reason the Board is not willing
17 to grant the interpretation that we are
18
requesting being that it is assessory use
19
and that the square feet does not apply and
20 we cannot conduct it as a right, we will require
21 a variance from the 60 , 000 square feet
22 standard. I submit to you that the applicant
23 has sufficient practical difficulties under
24 the applicable standards of Washberger versus
25 McCallas to justify the grant of the variance.
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I will not go over the word for word standards
3
again. You heard them several times tonight
4
and it is already part of the record in this
5
particular matter. I will recite to it by
6
reference. I will run through and explain to
7
you now we meet each of the criteria.
8
HEARING OFFICER: You want to hold up
9
on that until the January meeting? The reason
10
I ask you that, have you painted the specific
11
outline of the canopy or the corners of the
12
canopy on the ground up there? There has
13
been no spray painting?
14
MR. WAGNER: No.
15 HEARING OFFICER: Would you consider
16
doing that, approximately where they would be,
17
just the four corners? Also, would you spray
18
paint, I do not care if it is in the parking
19
lot on the ingress going in on the east side
20
or west side, two of the Islands? I would
21
like. the local fire department to go up there
22 and see if they can get around those.
23 MR. WAGNER: As proposed.
24 HEARING OFFICER: Hold up on that, if
25 you do not mind, until the January meeting. Do
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this in five minutes and wrap it all up and
3
we will see what the determination is.
4
MR. WAGNER: I would like to do that, but
5
I will have to consult with my client. One
6
of the reasons, with such haste after the
7
last meeting, is that the client is anxious
8
to get some kind of a determination.
9
HEARING OFFICER: I know this has been
10
lengthy.
11
MR. WAGNER: It has been a long time and
12
we are coming to the end of the fiscal year
13
for Sun Oil and they have to decide where they
14
are going to put their troops for the next year.
15
If you want me to proceed with that 'in mind,
16
or I will do whatever you would like.
17
HEARING OFFICER: I would like you to
18
wrap it up. We will just close the Hearing.
19
If you do not show up, this is no big deal,
20
but I would like to go up there since this
21 is one of the sites that the fire department
22 uses or will be utilizing once the tanks are
23 removed. In fact, I was at the meeting the
24 other night and this is the one the chief
25 told us we would be using. We always use
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Sunoco any way.
3
MR. DWYER: T can have that painted
4
tomorrow if you would like an you can look at
5
it then.
6
HEARING OFFICER: You cannot guarantee
7
how long it is going to be there?
8
MR. DWYER: I can have it painted as soon
9
as you would like.
10 MR. WAGNER: He can do it tomorrow so
11 you can go out and inspect it this week.
12
HEARING OFFICER: I am going to meet
13
with the committee chief on Monday night over
14
in the last MacDonald' s application. At
15 that point I will then talk with them and ask
16
them to take one of our trucks up ' there so if
17
you can have it done, possibly Monday. I am
18
not guaranteeing I am getting the boys up there,
19 but the Island is of grave importance to me
20 so trucks can maneuver in and out of there.
21 MR. DWYER: You are saying that your
22 trucks use Sunoco gas and you want to be able
23 to maneuver them in and out of the station.
24 Again, we have a tanker truck that gets into
25 the station that will have to go in and out of
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the station. We sat down with Mr. La Sarde
3
and made a scale model of the truck and moved
4 it in and out of the station.
5
MR. WAGNER: One of the interesting
6
things he found, I want you to know we have
7 been through the Planning Board office and
8
we are at the point where we are on the verge
9
of a Public Hearing on :our site plan. We met
10 all the requirements that they can think of.
11 One of the things that came up when we finally
12 left their office and went over to Victor
13 La Sarde' s office was that the plan for access
14 and egress from the site was not workable when
15 you consider the size of the tanker truck coming
16 in. That is the context in which we were doing
17 diagrams and making scale models.
18 HEARING OFFICER: We do not have any
19 tanker. trucks but they are about 36 feet long.
20 LMR.. DWYER: Ours are 56 to 60 feet long.
21 HEARING OFFICER: You could always use
22 the outside of both islands so understand
23 that is not the particular problem. I was
24 more concerned about where the canopy was going
25 to be. Try to get the painting done and we
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will go- up over the week. I understand if
3
it is raining you are not,.:)but I will stop
4
over the 'weo.k.
5 ,
MR. ' DWYER.: I will get it done. I will
6
go out and do it tonight if I can .find a
7
hardware store:
8
MR. ' WAGNER: You have a regular meeting
9
in mid-December sometime, I believe?
10
HEARING OFFICER: That is a special
11
meet-ing.
12
'MR. WAGNER: I thought it was' a regular
13
meeting. I am not trying to be jumping the
14
gun, but like I said, we are under some time
15 constraint. . I would not want to put' it off
16
too long.
17
HEARING OFFICER: Why don' t you give us
18
what you; are going to read into the record in
19
hard copy -'and give it to us before the 13th .
20
and we will put it in and attempt to close
21 the Hearing on the 13th.
22 We thank you very much, gentlemen. It
23 has been very informative.
24 MR. WAGNER: I would like to say one
25 more thing. The one thing I. have learned in
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reviewing the files in the Town is that I
3
think we are the first applicant for something
4
of this sort that has tried to do everything
5
by the book. We have gone through the Planning
6
Board. We have been with them for several years.
7
We have been trying to accommodate their every
8
wish and I think we have reached a workable
9
plan. We have a relationship with them. We
10
have come to a conclusion. Now we are going
11
to get everything in place with this Board
12
that has to be in place. We could have gone
13
out and did what the other guys did, just put
14
the things up and started making money, but we
15
didn' t choose to do it that way. I want that
16
to be noted, we are the first ones .
17
HEARING OFFICER: Thank you so much.
18
I make a motion of recessing this Hearing
19
to the regularly scheduled meeting and we are
20
closing the verbatim portion of this Hearing.
21 All those in favor say aye.
22 BOARD MEMBERS : Aye.
23
(TIME NOTED: 11: 40 P .M. )
24
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C E R T I F I C A T E
10 I , JANICE TAMBASCO, a Shorthand
11 Reporter, certify that the proceeding as
12 transcribed herein is a true and accurate
13
transcript as transcribed from my stenographic
14 notes.
15
16
%C I el- 7
17 J. ICE TAMBAS
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