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Home My WebLink About3990 APPEALS BOARD MEMBERS SCOTT L.HARRIS Supervisor Gerard P.Goehringer,Chairman y'ti Charles Grigonis Jr. � } -- ° Town Hall,53095 Main Road Serge Doyen,Jr. ' k E r� P.O.Box 1179 James Dinizio,Jr. ate ' { ;. v;: ; Southold New York 11971 Robert A.Villa Fax(516)765-1823 Telephone(516)765-1809 �{ Telephone(516)765-1800 BOARD OF APPEALS - TOWN OAF SOUTHOLD August A8, 1991 Mr. James Kuzloski Regional Traffic Engineer Region 10 - NYS Office Building Veterans Memorial Highway Hauppauge, NY 11788 Re: County Road 48 in Southold, Town of Southold at Intersection with Horton's Lane, North and South Project of Michael Cholowsky - Miniature Golf Course, etc. Dear Mr. Kuzloski: Please find enclosed a Long Environmental Assessment Form, copy of the site plan map, and the Town' s Declaration under the N.Y.S. Environmental Quality Review"Act in the above project requesting a Draft Environmental'`Imp act Statement and addressing seven areas (listed on the last page) . The project site is located less than 100 feet from a major highway (County Road 48) which presently does not have deceleration or accelerations lanes to or from Horton' s Lane, two heavily traveled town roads located to the north and south of County Road 48. Any suggestions or recommendations that you may have on this project would be greatly appreciated. Should additional information be needed in the interim, please call our assistant, Linda Kowalski at ( 516) 765-1809. Very truly yours, Gerard P. Goehringer Enclosures TWO, .AD Nl 1•v...:F'c�5].TIV�:. D4r�..C.�„.. ........................ 'Z Q 7 .........•. ARAT.ION:::::::::::::::::::: ::::E:::::::::::::::::........::::.:::.::::::::::::::::::::::::173 2� . 1........10 : ._1:::::::::::::::: t....... .... .............................................................. NUMBER : :::P.1.6.73800-00:1.05::::::::Town of SOU'T1-iOLD., SUFFOL..K County . :: :::::::::::::::::: : ...... ..:: . ............................. . >.................I.......................................................................•..............................................................................•.............................................................................................................................................. EAD AGENCY : t473S00 ? ?i i a'own of SOUTHOL.D, SUFF OL.K County a� c c { is 1' e Y N) I _,� or, BOARD .::::Town B�-c1'r(-. of Appeals ..............::::..............•..::::::::::::::::::::....•••..................•............................•...........• / ................................ ...................................................................•.....•...•...........................................•..•.•.....� - LASS :::::U::::Un l z _ell::::::::::::::::::::::::::::::::OEN.ER T.C .E.Z S: `:?N I c . y 1 `• 0. I : i T_.Tl_.E ..... -::::N M.�.ch,._e1. ChoJ.o.�skY :::............::::::::::::::......:::::T, pe ........... ENC N NVOLVED. .................. :::::::::::::::: :. ........................•................................................................................................•............•.............•.................................................................................................................................................................. t r SCRIPTZON:::::Prop. golf cyr.i_vi.ng .r^•anae; miniature golf & .re.).a.ted office .b.ldg !; .].oc.,. 3340 Horton ......................................................... y............................ ... ..•..•.............................................................................•............................................•.............. DEVELOPMENT TYPE., •:::: :::DAT.F_ .RECEZVr.D:............................................... ............................................................................. C.:::::::::: ::::::::.:::.k .................................. ...............................91........................................................................ .......Res.ident-,_ ]. subdivision!::...............Poszt�.vk. Decl�.r.an08/19/9.1::::EE::::::::::E::::::::::::::::::?::::::::::i::::::::::: i / G: ` `•��Commercia Industr.ial � :5EZ5 No...�.ce Com ]_etion�? .............. : : , 6 Pr.ivate Other rovernm t:::. Draft ; :?? :;?:: �? :::::::::::: / / ........................:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::� ........... ie3ra.ng Schell a.].ell::::::::::::::::::::::::::::::: ............................................................ ,.......................... .................... . ......................Cl,,anc7ed To Neg .Dec ................ / / .........................ii ::: O.< Withdrawn Jo. .d::::::::::::::::::::... ::::::::...t i.nal CZS:::::::::::::::::::::::::::::::::::::::::::::::::::::::......... / .................................. ....................... ............ z ::::::::::::::::::.................::::::::::- ::::::;::::F ............................................ m' r. .................................................................................... ................ C.urr�.nt Recor.d :::::::::,::::::::::::•:::•:....::::•::• ::I. ................................. .................................................................................. 2.MPORTAIVT > > F' 1VumbC—_r P1 - 473800 - 00a- 05 Use the ,above number in all correspondence zhout this action ! To the Lead Agency: The. above information confi.rms that filings. on the. described. Positive Declaration were officially received by., and entered in the SEOR Re.posi..tory on the date(s) shown in the box headed DATE- RECEIVED above. The .latest filing .is indicated by the .most .recent date in that. box. The. date and time in the. .second line show when thi.s document was printed. Please check the information above carefully. For, corrections or questions contact Charles Lockrow, (51.3)457--22.2.4, or write to : SEAR Repository NYSDEC Division of Regulatory Affa.i_rs 50 Wolf Road, Room 514 Albany, NY 1.2233 Town of SOUTHOL_D Town Board of Appeal..s. 53095 Main Road-P. O. Box 11.79 Southold, NY 11971 tJ y # y Y/. January 11, 1991 ;t: ....Public 1.1e.ring - Gregory Fego3 Southold Z. B.A. nj1,a CHAIRMAN GOEHRINGER : We thank you very much for driving r the way out here . MR FECOS I thank you and I japologize again r ; CHAIRMAN GOEHRINCER. No problem.. Good' night . I make a In motion reserving my decision of .rece •sing it to the regularly scheduled meeting .and closing the hearing at this ry ,point. .:,I want to withdraw it., : I rnuke a motion withdrawing �� rt X.`> :my first decision...,. I make a motion closing this hearing and ` 'reserving 'decision until later . �?1 ' All in favor - AYE. ` ' /APpl • NO. 3990 Applicant (s ) : Cholow_sky/Casola t Location o£ Propf.;rty: 3?40 Horton s. L.in ''outhold ; .County Tax Ma ID '10O0-55-1 Cn p No -9 ' The Chairman opened. the hear' t a a S n3 90 p.m. and �rea� ,k the notice of hearing and applicatio:z for th,e record tl i CHAIRMAN .GOEHRINGER: .co ', _ Ut thy,. J L y� �y t I have o plan prodaced by Fairweather and Brown Architect,", Designers from 122 }St., Greenport, NY dated 10 '15/90 indicati:-ig .this particular ;,`�4r orl ,k' Y d C d a ' `site ` plan . Are there people in the audience 'ivho would ll:,e , ,, to see 4-h1s site plan prior to the discussion of this .§'� i' p hearing? J � t'z zjsi �ryu N ,x fir C4..::-`t tY e J •r ri•�* � , x} , �r,Yc1 - � , r y -„ a 3tti� `M '4 M'�� x+.v t r , �..}S. 1t. .-�.>??r,... }r Sf.,• 1p.-"1J"4P13 `t• `r9- AUDIENCE :Can I ask a question? _-js that similar to the map 'f� { � ,� that appeared in Thursday's Suffolk TI we s ) Y,✓1�Yr,f9{' 9h4�i.{fd2 7 % iJ - � •n-x9 � Ye> E is rt. 1) 1'r'6r1� i t zr` a - -.; ,' -1 J. _,• I. : ( F-r;1. ., I -. � -��;J}if i4 E � ��f Y�5 R,`-�._•. CHAIRMAN GOEHRINGLR I th, nl it i., w O it L caUrJe 's•Leduced �� r' amount 1 t � [ } L J^?lc'7 �aN 'fY •� Y t - � AUDIENCE Yes k w e :?�d$a r .. � � t .t r c J --,i 1 a. �. L _ r ,rti 4r } •r �r rr s� �f � � i 1 CHAIRMAN COE1iDINGER: That 's wh '{1 , ,{ „ y I asked you are, welcome t o } 1Ri, jr YCIyu , `+ 7y,1 +_; +t . a, 4 +;,�`t t i 1 4 ,� ti.'ji fin,`:x, ,,` Rtyt yYk'•13,Cx4t ,� AUDIENCP I would like to see it K " ` j( i �'x 7 T.'� , t4 ;:t •':' ::, ...'l' ',.�. ^, t ,':;- 1 - •.f,! .. 4 r -1 •�.' fj.�F'�• r� 1 1� _S nJ. f CHAIRMAN GOEITRINQER• Sure What we will do here at this z articular 5 � t P point then' is gust allow anyuody that would like a , rr e to tare a look for a couple minutes . Who would like to be t '' heard oil behalf of the applicant? Mr McLaughlin? t, .., e. -. •� ,'�` ....!.i;: , .;�: ..- : ,r , .. ,,.' :..-•_ ..' .. S <, f y . , :',I N'�ii7 `^ l ht h 1 MR MCLAUCHLIN: Thank you Mr . Chairman and Members of 'the '-' Board. I 'm here on behalf of the applicant Michael 'Cho 1owsky z{� Basicall what we have here is an a x ppro imately 17 acre ��;r r�"�A �,,, "�, €•kZ�k�� a n > xl' M'`�'�•'k�`.:`�7.K t,eP�',l r t K. ti , t y _ %.. fc3' '� '',�� 7 as '} •k-t.�-r r �t�'t.. ;.iy >c . z �y, -. F i.' "{ i '-yI '"b•i.n, i t ,�".�ri.t v .., r'a 'xt-:.r <"'� .< S.vl' c.'L S a'. f' '* � it s-, r ?.f >„ •�' 4" � 1 - •�� 1 s ass a z J r � `�.. 9 t:, t t r � 1!' j .1 ` r",(.. „�J ,yt `3' h' r f✓^` Y- 1� �"Pr�4� '1 c• 4 ,." 4 i a• '`C ayl -�,. � -. r _ Y�•Y_4.Ys w 'SA - 7 F „z. ; . : i ... t ••r a!'r.4 .. _- s�`::.}i1. �F,,, 2. >'d..,...Ffr..-._., - •, . .. ", 1.- ... � �`. .r. ..".^•.1 sa .x. E -... •., r`�fi,.. Page Il -"Sarivarymll, `t99I Public Hearing - Cholowsky/Casola Southold Z .B.A. 4 / parcel .of - proper.ty on Hortan's Lane which is almost directly" af� `across the street . from existing Lucas Ford facility. ' What il rrfi'4' the applicant ::pz,oposes to 'do is erect a driving range miniature golf .-and-_related bull_ding. .and,,:faci1 it ies ..;�:,:.What we are here for this evening is� a :very limited, issue .' The r zoning.. zode .of :this- :Town has a-regulation as far as .-this special except"i.on u's,e and the - agricultur.al conservation distr.ict • which -makes .;.1t a requirement that any type of ry :. facility 'lilce 'this-:must, be operated as a not-for-profit .type ...rr A'S•YJ1t t34d �{3• of business .- I 'Yrave >.sufimitted�•:to • t-his..Board:La -memorandum o£ - �n t and -I think ,,it's----very -clear in my mind from my research ,1 that the courts.-:-of. ':thisestate' w.i11 :,not- allow such a;provisron -t tK,li `.to prevail , _ --It s:;the province �of. aor►irYg and planning to limit and control .the uses to which a. property is put. It is #_ r Y not the province of- zoning or planning to attempt to dictate,:'`„`" -. '.who can use the - roperty and what' this provision df the :special exception-use does "is` try to Iunit that type of entity which can operate this kind of business . I think :you have had, a chance to --rc.vIew rn memorandum Y you' ll see that all the courts of ,.the state �ir�c.ludingi,hc highest court Court of Appeals, have rules. that such limitations are r�J4 AV*O1. illegal "-nullify baslcall��. ^o what we are here' fnr .this } evenin is `sim 1 g p y ..;that variance; �m o allow us to with an :applica.ti.on '_for .a , special exception and a ::-sit'e :plan' %,,:-. �r ' ti ym . 'approval :.from the .:Plan:iiiig: Board onbehalf of.,a operation z , w that-is going o be 'run -a husLness profit operat-i'orr rMU^ s.F,-'1'X` �.z, .to w-vY ..a'w.W] �;;17- r17'7- •'r' L_ 1 _ ✓. +, 3. SyL"1iJ'S�iH •rW.. s`s-fit Syry�3y' 71CHAIRMAN GOEHRINGER Thia"!s a" AC xyY Fz �;ueg`a c �-- That is t�,•1{u�Ka.tiw` ; ' vi } °r, concerni'rig ;the =manner.:in wYiich thi•o operation shall be « �� s w;{ N�s built a e rs t• t '<',.r a4 tl.A1 ;rFYaJ'.,QPy ar1 .4,1 conduct d 'or Chow ' it :shall 'be .td oPerated really. •I,}i �, u r r?„; ^�t,r r think "should more='pioperly .ref?.rctec? in Euture . heari.ngs' ;4 z ..-regard ing special ,.A.pxceptioni use and. car site plan approval ' ti ,> -;_This. again-:is :a very.�_1.im3.ted...Issuc that 7rat? - are licre -before�a ' this , Board tonight.. - We tare .certainly happy .to discuss ; r x project, to answer .any questions that any one. .may' have".; r A v reIation Ito=the"..project•.and Mike" Cho 1owsky and his °father are ] r� ^here -and if there :3an ues ions we would Y q t be happy to addr--s —them. '`' 7� ,r,;:;a;r.,r:'a;, 7 7,.i i 4 ^v";.<','.s:Zi ;[ r •?.'e;c] r 1nH . r x.f r ,,I f ',,`;' c FIAIRMAN GOEHRINGER.- 11 there be any lighting on the `'"'�= E t Y 7 a driving range s s , ; � � si.r ,dL t� .,,`6r. r t _ '�'Y-(•- YJ•r 1` f�. :. '::'"•:.-,,.'.'' •.. ::.... � ... .Yr.. 3 .,'r�z,;...'. ,. '. .•., '�' , ,. �.cr..yt;" 1 •; n:?yyy a 4 T i ;t � t+. MR MCLAUGHLIN. Yes •I belie , ve that :.hows on -the site plan , `* d The lighting =that ,`wiTl b.e directed--basically outward from tee area to the .landin'g area for the :golf ball:; - .: �^ .. .. ,�'�. Y. --%S•_J i+as--Y:�,�'.�.aca:. f ..c•----.A�.•.y�4'�i�fr•. .17 .irL.;1:.�:,`'v, �.rya. }� ��° � r•f�rt'{, t S y ti� '�AY� �{'r�. did, A,r CHAIRMAN GOI;HRINGER r The only other question I have pis ' issue that you areactually looking .for I assume what "'� �' *3� z y� xiN � t1 �' � • .y c / ., t. -"'•"d] J •y 4 - /+i*- ] y d. '/!1 *!4 L< y ^rs'K; '>,y'l t['�`�".'O "'�f' r.d Jf C7 '"•/ .'Y :i` r t 1 tt: 1'- /a-_�,<-� ••J. 1j.4S` v�g �r+.J`-'r i yl_ y [.w r T. r, '-� z t3.v 7p Zi� 7 5 t, �r �� k� -`3��`f � tr •rTa r 1 <` /r`+�`s!i' ,733"'>�'�i� C, K"�iti�a '�..;:�'4✓ 1 t' ,mob +.�C f..?'-r fr -R J f. 7`r Q r ` 3d.�- , j 'T n'1.,M,(.`v``-7+'rf.b..�:' �A'�, r,f�t.�r•''h.�.��t,.-at� ��t`r;,, (� . _ �:K _ t ', ti� .!•;; f�"Y�K,,, '�''E �c �- r olvS:;K :tee-Y�v�� }.-'r z} ''�'rv"{?'+�.,��1.k i:_l�l°J�1,pE:kiir.`S ��'�': E :. '.�,it a h,z. l ] r t+ 5 1, ry r -1 ^r' •s '1 ,k`tY V' fi ! t F +]`L� � .. .-.. •-i3t�r {' - '+ { ] Y:..,,{ .re^ i�f-^.��i 2.H i r;'��. xtti'` t •ifs' r ,J'z'�y•.�.sr:� { ,y;.�rl.f�' -s`',p?•-:ev]r,P ;� `^'� v�.;t. 4.,�• at.,�.�itc<.3jc 'Y._. -.t t�v�'S F!''"�, t p h x.t}��^-a r, v,r,�TF?• .� ,.''CtP'-�;.1.'k•,,p�-r ,�t'i�. 3,, -rz5,.�"�� •,;. 7,Zz y r..J( t., .�' s"' ,z.:�:s4`'-•I'G -s -k'xpa a..• �;+.: - 4` fay t. t'7. �t�i�3•_,�r. ./S a*.;: ..A r""',t it w �•l r<s�-,+:�4�.' .•u•`•'h." -G, / +,'i>,. 7+ 4(. -�° ;J !'.r w ky... �+� Y'� .zti�-r-h:4:i� -.GZaJ� �c ii- M "i,G`:",ix•, rs.rL.,_G.y J^diX' Y � C,-`7.. '�:4r _ 22 '•!:, e � [,f R4,y� ,.}r,. •i,.. , -".r-•. '✓s1 '3iy�., t t a f.. ;f -, 1~ +Zj4 r'43-'f+. ^' ,4 st:• :. :si.{+;:r°.=Z ''•� I . ��Y•�,a. i- 7,�2+Y�,-.`r�J �+7 '/':,ti _ ,,,y t- `� �..,•,,�.%.;:�;r '�, s •.:,�- -..�� + ,r�k r.R y ,,,, '�c. .t ` ? .�44. w.,.' �";•�`" ��: t'i L.r y��iqA�,., n' ,_,� 'rW,6 ` Jft�.ta'i;+ 1 ''GriM1` l* aa :, f'��'t fiv�i�. Z'sti,;f c'1 r r•�/ y'. s ,�- 4 r,'r ..f ,T ry, ` C �-w��' ,"• y` _,S'!.` j,-- `' jir ��,G�s�;:!��'.,x.� :,r-,:s;.M1'��.'i�riP:' -v � a.��'.,efi `� �` •�'�,�.+�a *"r �`'i �7� .—`T�d �E� ..•� w''�•,I F' 'y �.I.'�`+F .r,S e' .,at•!.e=S�Y,�_•5. �5:�� t,'.<„`S., c� t .,t' - -w r 1 pa�� r- �}, c`'*�-''�5� ��.�;?hrr;.�tvv�»iv� � '. i Page 20 - January 11, 199 T Y Y' , N Y"tEy Public Hearing - ' Cholowsky/Ca.-ola > ; .Southold Z.B.A. looking and correct me if I 'm wrong, Mr . McLaughlin; are looking for either relief from that number which is number 7C at 100-31 page 10.41 which says "such use shall be conducted for profit as a � business enterprise. 1! t ryII y" r � h MR MCLAUGHLIN: I am looking for relief from that and allow#n g us to if we can obtain future Necessary approvals from this Board in the way of a special exception and from the Planning Board a site plan approval to be able to operate: rts for business purpose Not as a not r-profit type of t operation s F ;•c r r a3rt a a - x f r ;..i i • h F ,'S } .,i•t 1 ' A r�^A,4 t . 't�b.a -c�'s.ti ''�'i r` GHAIRMAN GOEHRINGER• My only concern 1:3 that • I assume we have pre-exiting s p g golf courses- avid we ;�r.�vF a pre-existing miniature golf course and we used to have a pre-existingx r f a :driving range In the Town of Southold . If we were to relieve.. * ,•'j a ;rp. this .condition, :or to vary it somewhat, this would cause a ' precedent, ,so to speak,' within the Town . That is my only concern at this point- It .could not only affect this yf , particular project but many other projects and that is my &r�,��`U ultimate concern. -I -have heard of discussions of `'p-Z. construction . of a 200 acre golf course , in .Laurel, which would certainly not ..operate unless it was operated for profit '' s ` }' �'hr MR MCLAUGHLIN Unless 'it was a private club k CHAIRMAN GOEHRINGER Similar to North Fork Country Club. F have also heard discussions about.. Islands End being profit J t not-.profit I: really don't. have that at this particular_ point a't, }��L� ° ,r x% l7£ a}�d';�t As probably pre-exist "zoning anyway. That :s � my main .°;u -� ,'r J ,° 4 concern at :this point Do you have anything you would liken} to say an that area? t, MR MCLAUGHLIN Well I think obvtotis ly every application has ,r ` =� to stand or fall on , it 's own merit . I Suppose there' is ffa t! legitimacy to" your concern- and - people would certainly 'come back and point to this . If ' I m denied the relief at , this u5 1 point obviously 'I think I".have` no alternative but to go :,! r forward and again I 'think' the 'precedents that I have' provided - you in .my memorandum of law would indicate that ' I will T Ultimatelyprevail y. '# p probably. If that were true if I had to go that route and I did prevail then that portion of that r' zoning ordinance would -then be g gone throughout the, Town Y. would then not be limited with my applicati /n on r . . :. . _ :, " •' F � 5 ,r J is t CHAIRMAN GOEHRINGER , I .think what you had Letter let us :do `' � ��, is recess this. hearing .to the next . regularly scheduled ti r.i monthly meeting and , in the interim we will .discuss your i memorandum of the . law with out. Town _Attorney and we ,will.:.go from there Now .,that is not . meaning that we .will have it<. in r }-r r L:. �7. L - r ca ._ q �; ,l..{ ,,- � Y -'S ,3,4 r_� i..,ryr,: �, a•f�`^`r'^" -- .rt-s. h,.v.1 i'3 .r.. �J fie,f �° a•^-,a r .,. i'r v , Y c , .'`.- .� r f J +s"r��y1'' j. ,c �:3.'./trs:.�i-+, `i�' rt ev r:.y ? .s�� F�t,�r` :, ..,..t � ..r. t �Y s ,}..ti 4w Y G.K..r`-a ( t,i,zar µ r � �i' ,.0 X k t.-'a, -ti)'15°,y,-rc7. rj.-w': ,r+�$' �� ..,,K ��,.:a�•r ��5;[q/A.t w �,_}n ,r\ - ,< }' � i s;oy z �-�E•� . _ ri*,'F„ � , q'3 ,>:, f,,.rtr ra!�a'"1`y'.��y� -'t'1<'"�1'�i Sf�f{4,`��:��✓��4ty �._r��"�cv r,.Y t � � � ? h, .� ''>rti ,' ^s•�: s r aiA ! t,..r .�,�` x'r r '.yr7'i'R• � .c � �1 ry�r�i, s�:+',=e+�'T+'et ice}. 3.,4 c.=� ' r . , � �fS.r r?tY..ir 1,i.4 Mao:.r .r�+;1, '�eirt:��v�'�`'�-atin. �s r. :�,^^` � �d f�..'.y x' �h�i.}i`.r<•.,t.•o;�j•[7�' .�„�'.•.`Yt _r +.h J.. ti �., a _[.rC.��A.�,s �..'s;°�"y %t}U y�'i �'h'y r�,`' �,is��.X.j�'s�Qr��.;�,� .� ..,;: eri'r-.,�+,YS (��r�r>>. �'i" '9W�Zy_tl:f. cry ./ 4_'� � .}^ ,,. r1.• 3'�:.'i'rrsi!??�-'.ir`i1'� rN'3 it's fy.'�`r "E'4 ti'+�i,+,,� :�?".ft:�i`jr. } '�. . ... ..:-�,.ei.$,�.i:n-R.:Nv=�.rsa wv�`.*� " A ,tP':v.T�.7�'•�r,:..aaYL'�:=Jr:4�•}i� t.. �:'? y e. .Y. .':srt'A'}�Y�I'Y' ,� ti'Y�.Ta�3.v.r � 'G-§"n,D-y`a'+C C?asL� . , - ,,,,`,","f" .. . - 1... -';,. . � � . . . . , - " " -�� .11.1. - . ,-��.,,-�"..,�'4;.,- ... ..", ..� - - , . . *, "' "_,, ;,, _' ,� -,''� , . _� . - - - I , . -�-�;-"-�,,,., ,,. .,..� - - "! ,,� -, , , '...�,.._. ,....1 r,. vI I - ,� � , .�y,-,,, .. , . k 4't.l,W M-✓y Fit , _ r ,- 1. V i } i Y�'. '� 1 F. z Pa a 21 -"MJa nuar 1I 19 9I A, , :,- },� ,� ! T, �,z. Stu . g l yN Y Iv. 2 7 '+ " " �, � Public Heari.ri Cho.lowslt Casola �' t i n t3��.rw� , Southold Z.B.:.A y/ ,r -t , h,�{ , : n t F 9� 3j n 1 {'.,yT� 1. A F ' C,�. t r Ca the - early::part of February, it will. be the one • In the . layer `., �`�{�41:c,, til,�",`-, � , � r , c �s �,! �, part of February ' s' �` i', ;, ,ri ' A i " s. .. tY.; ,.. �' al 1 i tH ""S' ,"' #., , MR MCLAUGHLIN. 'mill-My only ��Y��` 1:. su h•� .`.:�+w _dam ..t F try c �r€� rt., ,a- `"+ Y �t {1, , this along as expeditiousl` as. poss i1�le bec;.ause .obviously we,: a z'; �',_ �' - y 'do- have•';otherli ,., .:assuming 'that .-we ge-t` beyond •this stage, we do:.• ,,N!,� . haveitl1 r 'hurdles� to' flvercl�tn� �n�] we ws�uld 1 ike t�, pr��gress r as quickly as pos.�iblc 4i � , ,< r. x` " ,r. l.•5.,. r r lw+, s a ' s:i�, j. a' - t ',1, �!^-� .r "i,'. etc` J. v ;. •-£ r.: �.' ay.;.-+ .;r t ^a 14.i.Cfs y f i 7 `*4 's' CHAIRMAN GQEH�ZINGER sAre 'yo�ir I.applicants -contract vendees orr �, �,r; `a * ',; do they own the prope'rty� Ill; p t ' rY t fit s v'tr'C,,t , l} t'• i. �', s .- a �_.. 'i -»,. i [ , f r,, t r t �` -� '��'�"?4ii a I r 4 -^t'r_-t'.7 . r. i MR -.MCLAuoHLI,TT •:alley ��e•rc� T`on[3�'�t��ra:f�lea es wit�i option t0 `. ,. j , , 1 t purchase . t, t{ 4f _11 ,' i t , r ,`,� CHAIRMAN':.GQEHRINGER I ,:d'or7't i� rticulaxly "want to, ;to 'be 0 ^< honest with you, 'continue this to any great degree what , x � r ,;,r,' want. to d.o ice:.just discuso. it. with tlie. Town. Atto2!ney We .._a31.t3 4�`y 3� l t��ave been v�r r busy on atc�ti0 13 and all the :rest of it. I. .have k; �'k�s F' 1, gotten chance-..-to"clt cuss this: wit'Yl them: '. I should point: �;F�� - f , f aut for 'the audience 'that:.Jt _1 .s the nature of this Board that `4, �, �;Fa }� when' "a 'person bxings '.a` hearing before our calendar that we do ,,I f , il.1.hear :the:...case _and.we do appreciate .everybody coming .out her11;e � �� '� L "'' P y }7 I . lust want to mention fOr the audience again that you have1.,..1., A�. ' ; ; ;F,zc i tY�e perfect right to � ptak:: t.briiyht.. that ,this is . a preI.liminary11� , -1.. are,�. ,. rneeting for teat molt pu�po of r7ealing with the issue ofT.f ,� `� r not for rofit a� o o_;6d to rof it which exists in the ' code -i ,,' , i p P p p t:5 � .;ri fi',,,{m t' 't e r 4 e,y i ya S '"?".".'. .." k. r - r t, ` ` Y ak5„t rr t ,. t•,....,. a i> ,.e :, •r - '} t., •;:., -„ 1 t s}cr`Y. _y.. C'}'S'..a Y'vaI-i r� t u"r t i, MR SQHNSOPI T live o21 Hor'to.F.� 's Latie . :It 's' my iinderstariding � ;Y=�� %,�� Viz'. f�*,�,;� 'yt ' tbe= irevill ouss ;speaker; tlZis point of. .law would .'allow:•him to �4f-� ;, �%��tY_ f'k,'build a fat �iz'enderi.ng plant: for 'ny particular business he- ,�T-111a .,, % . ' r��` a ,� decided tv build. I 'in I I.correct in that "r M;Y , ��"`�r t >s f •.fY'A dl r��+t!"�"atl a`w^i+.ar' j'`7 c i. .a t x j a r t r C x , c ; Z i.. "r Y 'S L ..,ft P c2 t {A,�.1�r W ' , rti ik 'Y+�x a >. e�11�p'� f ::y Rd�!' :,Te` _ r ! '.t '- ii Y `"�'�y.c)4't,�`fir`n'r .,,I h 5 .: , r ,,... a 1 .. •; , �" a`` -te e ,ss s,,<1h�� -�at�3 Y +2 x �i{,� „i, t CHAiRMA ''CO�.HRTI4I ER I aGtl t I:now, bc.cau�e I have not ��K y�;s ,Y 5,� �k 5P � ' r� su ." ,completely .revi:ewed tI .he.-.m rnorra_ndura . of .law. That is.=a .; �� x� >j;, ��- '-� ti � jzgF uestion however .though <A£:ter_. wc. give the ,Town Attorney }a " zr r,f�-�r�4 � z, .1 , copy of this tY t you might ask the Town Attorney h1�1, � ,� . up�.m T;'e4-� 't-IC a r .r. Y :..,a , .ems ter; {r 1L �[I�rt 6 rrk `15 _ ! i h'' ,, "l3-x r �� t:a>',:3 1.z S.,r.•.�3ttw. ?- �t _>. . ., "s• ' :f•.: -.c �, -��rsil x *,�`.� cC yi- -,� -"{ Tc"a"raaf :r.l• .,: _ s �} l l i 2vp? f F ti•C C -� O .. .. .. 1 µ...'U -d V5.,1'h a o'.if l t�f - _ ��,dt AMR. JQHNSQN If, it ..eem.r �o `unus .ally wrong to be a le'.to do 1. f , }}5wk r ,that Cx ti z ti. v f :, : r{ c 'J� n^�'t,., T , Srt. s ., .� •'. ri t,''f ....{ •.[`'• } ` F .]i-i -t '�'� F!' 1.�7r icy `' .y r 'CHAIRMAN GQEHRINGER. There is no question 'that when I., sat 1'} ' '`r-; #- llr'tO� °11� with the gentleme.n'.:who - immedi:7tely sits - to my `left ,and 'should � � i'%' "-- TL r mention this entlemen..has :been .on this Board. for 35 years rh � ,9 . \, L. along with, gentlemen that `i;i jt13t' in thr hospital =I asked ,r ; 'him uniquely ' 'at a -. oint meeting with'rLhc Board. of Appeals `" = r from the'.Inc_ Village. of. .Gzcenport. artd the State came down ' z t - L and we. were.'deam . l ng with a training, see; ion: I said.; to. him '$ ,` f�`��"`� '�A�'�� ; "Charles Grigonis -,:te:ll: me ;why what.: brouglit zoning to the Town $ f �, r of Southold?" told wan 3n y°N��Vzztt� � He me that somebody ted to build :a s� s �� t �, ' .r-.'C�n_v >_ r,. r t --�to T t r er - ru ? a rk -r F �1... t -n y.'' xn'h"c r -l.7ia 4�f!yii4-� 1 n9.8r..- +{ j.:�'�J ...P-. ,< S` t tt "r t S�.c y 4r .'y*..tP•r"Y'V� �}>r 9�' i '"'ur, 1 '�'.Y'Y k` 'Y"�'rQ{.p X'Ll'x ,.kjia �+c Y A�!"!�,:-' 7 'tt ` ' :+,waK`�f�t'�r [ h �:t-.,ayC` --t'l�rr f `2 B 7 s4:, xi`.b�L{ . F2" ..?j,li p' ;::`9 i {L a �.lri°n �27`4r� i C F 'YcMt"FrZ �. b l " ->ty r z �r r t 1 t s7F 3' ti Jv ti o }ya Y c - 6 r j t r , z v", r vS >..t +f3'. : -Bj-;;yy - ,t ? 'tea C x y f_-7 r�i (, '• ski t^�'7r � `-w£rs_� t_e "F�, .,xs! +ltzyr..y "xF. ;..i .T rkt�,�'=T 1t ,}-v, e�",r'`w � ra � lr 'Saf*#�, varr {Za -..e'�.."''.. .et"�'� J,Y+.,.k•T.fv.. f: yfip ' -; : y;r..r 4sF s S•- sF •3 "" i,'t:" 1'ra.,lrtwir f Yi`''`,a ♦`K�b r �: ..x �.y= .�yy i�: • S �. .f,,{ `• ?, M.'r.' �;. ,t ( -a., `V'•tt-Q,."�rfi�x,;1.. .y'�` ..�,YY .rrLt „:;'x gt f4lt`.l:,r .'a rj 113f - �r y !' } r:.N �.2" ". .YS i„'i}L- "�.'2s .7�:'CC a;`. .s.�.zI� kg>s.•b i"" "`c`f 4;w"•Ttyzees-,,ry` '�ri�rt6 � �` r4ia;7'aw- «,. 'tiG' .r ^ yilrU�,�`c'l •Jc� k .r�c• t ( p .r^q�'J •,' .ri.� ..� CS-. 3 ,',I zc_ w - +!' :.vim r Y'y 4r w`'.t�`.t •'4'• 3'..�VV.'e•s X`Y`'.v`a�� yyd:_'a.s,:_'.:a 11 „� F. �� raay�� .;ia +Y J' L6IJ.Fi+; GKI.i'..4'nvL. [`,t.h:,al, �A'-.uF•.1^...e. .rcY�'fi P - 1i;t••-rt, KY 1.+ r . ['S ]V•«'P A . t ...•1Cyi.:I �n :1 ul frt ; Page 22 - January ll, 1991 r �' trl ~yrtr 4 Y` Public. Hearing Cholowsk /Caaola bru y Southold Z.B.A sauerkraut factory in. a residential district ' .That is basically, 'if that answered your question, fine . MR JOFiNCON Than3, you very puck Y 1 fi� •I,L.� t .y MR MGLAUGHLIN: If ` I could dust bziefly respond to that.'' appl-i'cation is- riot to allow us to do any kind of profit t' F' business that we .want. to do there . My application is simply to allow .us: to operate, in our particular instance, rflfy; ' the golf driving range and miniature 'golf for profit as opposed -•1t y 5J i •'Y.5 c�S K pSL not-for=profit'. As far as tt7c , public ' - L .:: 'coricerned, ..there would ! be absolutely "no.' difference between the two operations . <.,;To- walk -upon ..the site you would sec ; absolutely no difference between a profit and a not-profit 1 We are riot proposing to . do anything other then what .is DNS r Y; allowable. as a special. exception 'in the AC District, We are ,4 merely asking that as opposed to having to .form a not-for profit corporation and. operate a business without making a-', profit. That we will .be able to .do it as a regular business corporation, partnership or individual ownershipihr �5 1 r CHAIRMAN GOEHRINGERc Please , understand that I earn not comparing your clients projecC to. a sauerkraut factory or anything o,f that nature because • I am not jd L-h• MR MCLAUGFLIN . I :was basically' responding 'to the question ,ts, ''and we are limited to-' what we could ever hope ,t.o be abl'e.ao do under ' a special exception to those uses that are allowable, � n � 7 special exceptions 4 {i `•S t. a 1,�. f(,�Yr tr'f}'trYt r� •"Sb r "_F ......' rt , -c. 'i^c.c ': ;;,,A� f .�'- 3 ..+'•1.: 1�k .>"'..=r•r. C INTERS':` L;.Iiveon -Horton r Lane I 'would liketo 1addre�s instead of going into ray feeling about whether or not a r= tr ciY t'. Z t,y� { i$�i , -; - - - :. r s { x a " tit•,'LpSp, •' 1.0 , !,+ y driving range constitutes golf .course and .speak to.`the 's � ' }��c n',1 �t'15 ,i,C question .brought up by counsel of _the applicant arid .`due �Y:� ,.is*tSiF tF nl,t 'i.' t' a nt rdf ; ` grespect .to Lawyer McLaughlin. �<�The:.iwordinc on this. 1 Z went Y ti rx�f{f �` 1 back to cthe zonings book`-and when you get into a AC . Diotrict4 `rit tall.s about pre�c,rvation, It talks 'about residential r� W. r development with ,a ' minimum of two acres : It talks :about f�r;xdl, ^4ry, certain exceptions, 'maybe .a two family home,'' possibly a t�fttlJx k nursery, a church,, things like :that . .',A golf 'driving rangee h`. , r �. 'h t� ,''n" Seems a far cry, to me,_ from being anything with any krid a£ r=F E ' t r' agricultural or conservation orientation It 's a .business pure and simple and it 'belongs .An the business' district, in a residential district which AC_ is ::In .fact AC is h= La, probably more restricted in terms of residential zoning then `' r` 3s a pure RE Because. it addresses .the wide open ranges.:-'and -rti ;yd the preservation of the flavor• of the 'Town. .. agricultural , ;flavor of the Town: In any event, getting down to, ; possible exception _uses, one of .them refers to and I 'm :go " �" �~; - g to read if I may, beach clubs, tennis clubs try clubs,3gsx �L `{ coun r��r -.;-wri t <, 'tA.r� a 1 x� °if �„ l is j t- .,� �' jYr s i1.4'y„•J "1'+�.Cr'e�✓ M.n" � `y,`rt,,11 j32c'•v'�'.a�fl�z��.�t 1.sir��„`�-^tniL�7'�e,.��' 1,All; .7 S F sr f L,. -�3.,,.,!4 ,�1,"`4'`F'��` ..*`ir- rr g i."( J C :}.,^, t 'r Jsa.?e:. tY r!-rn ems�-..{{ iw''r"'r -•r I`rl`^t,1 'd f aqr,.:�'_'"'.C.��,..�>•,7c71N>a'�:LCC-4:{.z ...i }'•'. [•}a 4 '..�.. i :f, lr.. S t '3 y=. .,;'•C. � .Y''Y .1 •iil 3}t .:y "i i %2 •1 'K>,.. >:e :i 'LY 4: h,._ "w4 � k .h< x r t s t.f 3":' ,.;''x'c�,: r- " K. rt. .7`x t , �.ti}• - 1 4d.-�1."7�r'FY 'S .�` �':h-•') i� �""'� 5Z"•,�^ i�e� £^,..�,....r.7� d,i .i.. y: ,r:Y '{ Fu '�"1('r e _w�. "� *^J a t A 1 h's y 3 v.§'-r 't•�tz u �"�i- •*i�,;�JS 1�s -r�1'4�s;' is��'i�.£,-��t+p y,r��'�i5-c'�L'i°-�. = ,. ?.t ,- -rr. L z�''e P- f>n -,.- e. �. t+.,} 'dr i s v-5 s ,s4. �t Jnl?S J"�• S 'i'c-�,s ;F' a " �Y�. ;,'1't Yf +, .dti� ^y..�,.S v?'•.'x-a-r:n., qrC S�,w',F �.� S' } ,;�,,. .r',n.ti., 5�' f, �.h..''s.S iAn. ,F .3 c.sf. >L'`"'•;i�.#L; yEo.-`-•'�4.is•`'•..�.'Y�;ysF Ir�-�• `aw.wytr3l�. Yta• e'XY• G ". � �;.t ,* a � ., �.�-:a. ...�: , , 1{f-� 1 '-Y.+,,., F .S`ir c^a�'F-,,. 3� 1'4•"'t.':+.�. - a�?,,� - _'.� �<{y X �Y a`!��`�•'y� - rr•.�t ,-s r h.ik:,td ...fi �. s �7 } u ktr_r�; � r^��-r�`.. 'Y s f ;*.!"'n`�=% 'rs.S�'`,y-�'`•"t- �ia�c><' sl.,: .tI Si'.. �G"�'.n-.+ .�.1 .. � h��' N: �' at sX .a ,!. t r ti GT ra "".'i,4Jti�'?i" �� r• p Fi ?cY:Sty•' F+�,7p C i .�'g7��y�1.� ."c�'yjy-7g.' �`_s�'J` ::��y��((""yy,kk�^^c .xp c� �-�Yc�s ,,Y._.'-- s•>•/• i t - d" :A.tt, si .n �n •`i.`Y'�!x'T�.'=Z"''"�',.,._• +a -oiii��WC.i.LSr:.JJJYar,.n"'i'^.4 / :R7"r� �;Zi. .. t¢k��4.�4' ��w`.Sivl�]t..:3'a::�z,r ;3.+�:1r a..`�}''l..n.�,.��'^.;i�.. ..,r.�il,C ' #s:"t,. ��v"!,j �:t.''{{__, •.�j K ��,,$g'.y �`,`�..yyf - ��1Y.4:v148r y+7+Y., w.>Y3\��AC�ii!�+r!Is'1C7�•.s S+: '�. } 1 Y x ' },y, }*o — Page 23 January 11, I991' f T d 1 � ..;,Public Hearing Cholowsky/Casola , 4 Southold Z•..B.A. r golf 'clubs' C. . � X��`n" � j g , y_public goI f cour,,e.,, I � presume that would be rk something .like the county course. in Riverhead, an annual:. , membership.. clubs catering exclusively to members and their guestsWhenahe-conditionsti of.:.that, ' I '.m trying to :get to ;; Lawyer McLaughlin'z --point." .;:'Ls that such use 'shall not be 4, conducted :f.or .profit as a business °:•enterprise It 's my guess; 1 =� ' in readingt.h3s and thinkin : g about " it .a little bit, that the . � � � 4 authors of the zoning luw put that in there for very a 7 ask s specific purpose :because .they. knew -that beach .°clubs, .tennis 'country_ club.,, °golf+ clubs, .public golf courses that , '; r4ir� , , yr wou1dn t apply, 'but that ., .a . little different An 'annual k A�. °a i membership clubs ar:e =not-for-profit. There'. maybe some s exceptions to, .that' like -End which you said pre ,existed zon1ng anyway. A private membership only exclusive membership only North Furl; Country Club. For example 'Developers•- f1'adk to these clubs to build residential areas, residential :hordes .s:urrourid ng them, :because - it enhances the value of a residence .:rather then retracting from it . As. -Ii .suspect that a ,.golf ,or dri,virig range and" miniature golf that .you pzobably :would with light-- and -this , type of Eking Y �` 1 ;; 4 c don 't. think :>anybod.y is going :to flock to put in a. .residential subdivision surrsaunding ,:golf or :driving L believe ;that_:to ;take . the:. for pr.ofit...:or. the not-for prof it rk �'ai ray";. p P y,and 'try to deal with it alone is r� DU issue ull ;it scut se arate�.l not the intent of the -.vay the 'zoning. by-jtI's authors . t 1 think rs ;unfaii to `the -con,1i19 section as a whole to .try` to � �� :t fracture what was o=igznally. met : gut It c in. there a A\ rf r 5 condition to m�3h.c s'ur� that . f a ;golf club does go In-.:to : ,' area, a residential azea, Z t T c in ..incic'ed a `private, ,;golt club that i3`. ,g"Ding to :enhance the residential yr ;Fir=�j with the siderit i''l thing area `blend n rc f} J1 other, then- that Not . for-prof it 1:,' a `di ffcrent issue ' from ,�< < r` f that and I _.don".t think ` that it can, be :dealt. with separately r �5 17 Ft Is .'.the only; tliing, that ;we are allowed to calk about 3 �xk z 1 y- S. Cr � 1 tonight r ter{r ';You ecan'.t .do ,that.. becatisP if . we do It 's 'just wr ong a K',t�lF fyl. Y ,x Th�iJs is not the way this was written It can' t be done that 77n 1 J Y„I 4ij iJ..;r S. .,.i44(l :, ,:.. r•: r L'.r' 1 y ,jy k, � 7:' .y. I r CH21IR?RAN GOEHTtTN R Thank you MR MQRTIGLR 7 owl property on , North Sea Drive and I Second =x L f ryV, 1 h1s ,op nion r ti MS FISHER:. I :.live :at" the very end .of Horton's Lane -and I ` ' would like to ;say that I agree with everything that Mr a G f fi Winters 'just said o Kr :. ,....,.. a :.: r .' . s'4-.• ,,:•. ., ��.. l �,F x .<, t r+a A �rr"<fir'jy33 '" e"tt ...,ES -.- >n i MR- BOOS �� c -. `• ? 9-k 5`T 4a[ 4 fa a x, Horton a Lane: Conzideri"ng the situation here and - ' 5 {_ I 'm not going 'to ;say."very much .except .tthat I cons ider the sr°7 �zrt "� :` , * fact that Luca Fozd is acros., the .,treet is-p �_�� w TM+�ti tiR, 7 z�,a� K r e t ty t t M rS ter•- a�t L' 1 a� y}' 1 � a , t . J' S r ri h _qr +-. 'ti � rz �C�tb'rS•,. .ji �s ? l e _ .;, y 2 C \ G' apt d t�4 . ``�"' r� i✓ ,,4a'x-y-61�.,°'t�Hx�r� r;. -aa.a. ;_ F \ r 7 f r f Vim'.. .7... y .4�t A vFt\ i ;{ r3:1 ,.: +a,N'K h t,• 1;i ^'�::x-Y ,tji, �,j•ce �a"r.y�_l'' J' s, y„r,? ft t�r''.aa�k'rl:.t ...A '.a "_°��.5s ..-r ,:s..�',y� 'der\' ° :c�`��,��''��.',�{:.xF�+,�,, '� F ram"•d 1r,ron _7.vy_ .:aaµ'y-r4 < i'le.aL •� z..it.�.m•al. {.L. � tt'L. �'J".'7k-�� cl•:1,' t �,��^ .}�..tr4:{.• Z:.i�,• !r rd,� rfY...: �z<'°a':: "t�cS'��y'��' �� ' � "'�� rK} - '.t'I;t.�J �' �- 1 i._,. '` .+: '°t `T.:,L�r� '��.1.Yt 1. ,t � ,xl,,°� 1sY t�w�.t`•�' r- � ,.ty,�,.iY'.q e M�f .sl`'-r',..? '��55\. e E"',:�...tfy?.rEF_�Wq c}•:: '*•.y%b+•r �. � �. Fs s^rruv r Y a� a 3r. �:'- .t_.i•,ktt\v y �\y..t .: 'GxY r 5..�?tis> <. ti t'r s.,a.c.rtY Ss-t�� 'jF '1`�.�a``L.�74..a`'.wyt��J;r� h4�• .14"e,"��s*..-� ' ..��•:t i:. z k- �-, yti•5: z:;r.'*F "r:�- ,��,-: 1:r ';S '.��:=5.�''�-k'i�s-�2' -t ?1Li�.,•..,-,.T t�f�tk''�t;w�.,3c ....:tyC,.�.• .. t;f� _ ' ,...(�w-`i�•�it'5��.fx`�� 7"�FY-ri xr:+�a .r.•':�j. �. 'Y'"<-.t t` ,€ n}.. ,r i•.. .v.t:;.y,F✓. �.�A_ .,.Y''�.:• "'Ka%7��Mm7��i�. ,.�C ,r?- F-�'R�•-�i-4. '`< �`_i+"f�, ',�'�`',,I;4�� .� 't-'yY�,.,;Fry. *'' .'"3��1 3r}"�,' � '`� .0 r " 3 r .s .,.,a � .+x'''. i'6 C �'.^•�'�•r"..}i� vrgf ,,�' '�S,i��,.��i;�rr,�r, •LntS�ww-c•_..r%t��. .•.�i�- ?M4Y,;:.e'�.,� -e+i-s�i�rTa�',.��.��..:.i{..y,�'+7..�^.n:..,. <�K:••,,.,�..t•!.�.?'�:. -t }..,... r:d.V:'.,v`�:.•.§t3{ti��s•aMv�i.•��8.- .f..l-• .t-:K,r��s?:..t'.x.!i-i>.•'..�.a��,.::a....x;. _ rr , e {" \\\ i\ t r a, ': y t a kt !i i { Page 24 January I1, . 1991 : r y: ' ' r. Public Hearing - Cholowsky/Casola , t , u ��mow, y, = Southold Z B A. s rr�r`= .F ` .<_ , a pan,k z distressing already and I don 't feet that more distress is 7 ,t� � �Y . X4tk},.x' . 3°mot ,, y 'f necessary1. rr, t 't,l�s , ,1: w,v r -• r t 4 , > r ,., - '�� '� ! s fi ly Eck;aT 5. MR PATAGLIA i ,live 'on Horton's Lane i agree. with Mr ",, -.t r� ' ri 7 Winters in addition we, there are many people in' this area "',�' �14 r �T'.�t'j that don't,'-' haven't heard. about. this plan going in. �' Haven't ; Y`s'',}'E„�� - 11 _ been:_a.dvised and h��ven' t had a.chance to come up here and �5 ''�.; '` 5` � . oppose it. I f we could get a continuance t �; , e .. ,, Y f it 5 j -' t # t Y �Itu� rt�} rs { r � CHAIRMAN GOEHRINGER That is what we are going to do ref ; � s, = tonight Thank you , kt % _:,t a, {4h }4FL 1S Ynp+x,�� , �p j i' -t� � �,,4 , t',�n, r...i,., _ r '" t t 1r' .- 9%J ., r`=.r,,v rt,r. 1.1 . ZatY' y?.,�, 'wtif e i �-; ,:, :a` ,',r A., 1 , !, { .-fir +raL 11 .{i A k - MR REGAN. `, I also. live on 'HGrt.ons Lane . 'We feeh'.very y' i , , strongly about this : - First of all .there wi'lI be . a great deal tr of traffic, there will be lights . . :.What we �zre '.really concerned about is that it could turn into: a- . like it .a, ,. 3 ' did in Farmingdale some y> ars ago. We are.-ver_y much upset -'111 - over the idea of not having a cont1nuance .untI1 all of our , �, ' '� , , � :people are available to come '��ere and talk about it.. i, f n a f, 1- CHAIRMAN GOEHRINGER T;.ank you t 1`r 4 x % n i , , 7fr;i � r,attq 11 ' MR STOLLMEYER� I. live. an Souncl� iew. Ave near the corner of1. z� Y' �'r , Horton's Lane and want to agree with all of the ,former , Z.-yi+� aorh°.10 ` speakers �,', r g � > 'r + �_, .a CHAIRMAN GOEHRINGER Trunk ycit' sir . �4�1 'r-�4 q iL. �,, r , r :3 f�. sI. a r.s ' •+ }-__. ry ` , _, :: 4.. r x 4�r T SY.. � Y;.r E 5 /,�,r Ma L"PREoTI I also live on Horton s Lane and I: am very much n. apposed to this whole ro osition -We are: very `worried >x,'±�l ',, � °� ��`�tt' 7 e.' v-,�r f r P P r rr i , it 7 $t•r x im�Y r. h V p y`' A'4=dr a r \ ti. r i ,' -xt3�•tY,".1�, 1"r tq3 +z' .wr3 rj f-a31�r=r e \1 9 t .. 3 f -,.:. .'Y -i., i"12,t� .. / y. , 17 r;C .lf, , ,- �h;r v�yt lr .. ;:1.�- ,{ ' 4 r -Y ? , . f : ut iF�"?rt'Sdux.Pt>,J�M'`,F+'4�� -$tf+tr x� n�,br 4 � CHAIRMAN GOEHRINGER Thank you °,, , ' J �"��3�d r ��t��a �� . �.,�1.2 „.r} { o r. F 5 e,1( ; 7 r a St r•I. :`� A Y 7 J t. .n4 c .r y° ' li rnt` ,, 1 s r It dG�g �. lei��n j : g 4yr • tiF, i 2n ^�`r'LF` �MR MCLAUGHLIN: `Just a' C:o�tple of points : u reiterate. -.` 'rat'*" r x r � ' ° .Whether this �o erat1on is done as' a .not-for rofit o eration = r s - " P '�`'; p P f Yrcx K , `f`ifi �f� a s Or wY1Ct her `it' is done as a profit operation it''1 . , the same ), trt yt } 3' Sf, 'r �' Y� ;Sig, . s ,facility. Secondly if- it is .not a -special `dxceptirzn use 1t2 ' a4 ' s=a - � ; this di::trict there i no 'ether district .within the 'Town of ; �� ' t ,s"'n a,11,1 r �. '-i� ��< r;Southold in which it' falls: `:.This .is the specific district. .ir ` ;<' �'j �� ys� ' `which an operation such as this .sort was put -into the zonii7g`' ,, ` �' ;ram €�I r r'' r ,oralnance and .it 's my position to this Board . that the attempt ' y ,, '; Fay within .that ordinance .to limit it :to a• type of. person that _` n ;M`�jp, '.,I t, can own and operate that business is ills+gzl . It cannot be , 't, .t�L' ; t i < :done legally. . That is. the sole point that I. want to.'mak e- to r, r " 'L the Board this evening. .,Again .assuming that we go on to the: ` ' :' I r next step .any and all questions . regarding `the actual � }h 1 �'? 1�1,u sr 4 i 1 operation of the facility .will .be open again .to public .; " ,1. . `. r i h .comment as well an .continuation 'of .this _hearing.. We ' are �. ,} a',� � �zrati F! 1. 4' r- r;L , happy `to sit :down 'and talk .,,to people about ..this at any point ` '` turr � ;' in time and see ifV we can overlay some fears t, 4 � v'r -, ` 'u �, 5� , F.',.� 5 .;; :j;• is r fi. �,.,..,'.� '1 'x„� ^i.r tt, fu, �' _ , .; +,fix�,f„`��j F viz v- r3- K' _;siit 3,'^'^•nt,�,rL.».set,;y��it x.. y t L Y , x , rt r , T, .ray,4� t .S.. .F.T y r yy ' }'eu'G' +ate+1 rf 5+;4 '�£'.,_ 'h am Zf` s. y Y c , x , ry >a uy 4 r £ rr a +,.,. c�,P, "i9. s ♦ �. �.� cr ; i J , tr i cl? [ tt Y�,yf,. 2 4 .a'% �77 ,, �r 1+r y,Jt 9ra9NOR ?'� '' Ley'. ram. .` '"t;�' n,t. Yr 7 rr`.r ,s a��;t r t ,v r tyh•."K, s N 'a','trC '{,?crk t kf r * K'Y�:v"^¢ t' �',t '. Se•+1. s.,i i_,F'�awK Y .t 2 rG a - i.�r'i! 1;`t�.',t t, t ' 1,9.",; r" ' 'cam .:'L��tr�a�`1, ,h r1 .,'� a es .rx '�._F. �j . , ..+ � .�. ZI 'yfi• f.�, iZ g.'t- 7 .,, '�..a ;c,. F. .,,, ,•+' ,^,c ,�•4J,rF44 „ + = .tiA�, •t} �� .f i f'' t,.6; Lti: +r: i '' r•-i •1r ' s 17' L,w �,, ux a.. 7 ? r ' ;,.y.�+. �� r� �c'a'7-;•�I, t x.. s.�;y - (->s�, S 7, 1 }=}l C_F:IeQ:.!-.e. .,1 K r•r lCe l r` { �v t Y J�cgir v }`.,�,n• �`�,,,, 5Zw¢ .. k - 4 �n.>..Eu _ {.4•;+R".r7 �z•. - �Z;;�t j ! . ; t°s ¢ 8.y?�'l'.r.. �. rx »✓ r( a sCn A { Z v, 't A t? }fir a t Page 25 - January 11, 1991 - Public Hearing - Cholowsky/Casola Southuld Z.B.A. CHAIRMAN GOEHRINGER. 'Thank r k ,you. We thank you all for co min in. We will continue this hearing around mid February. We will -k e- advertise-- it in-rthe - interim: Everybody°thank you for - . -your courtesy and have a safe trip home . Hearing no further ;- comment I make a motion to recessing it to the next regularly scheduled monthly meeting . ATE in- favor Aye. f 'r 4 f, i ..e y:}:i..� ;�',:_�-_-Y•-- t •LL-e.:lt i....a� f, ,>.,,cy s- f C i� 5 ` l 1 7:-�fJ C�. y moor • ATTORNEY AT LA 4 828 FRONT STREET,P.O.BOX 803 GREENPORT,NY 11944 (516)477-1016 February 21 , 1991 Southold Town Board Of Appeals Southold Town Hall Main Road Southold, N.Y. 11971 RE: Application of Michael Cholowsky #3990 Gentlemen: Please be advised that my client, Michael Cholowsky hereby withdraws the above mentioned pending variance application, without prejudice. As a result, we will not be appearing at the public hearing scheduled for February 22, 1991, at 8 : 00p.m. . i Very truly yours, J. inAMU g liz JKM/dmd cc: Micheal Cholowsky 2605 Deephole Drive Mattituck, N.Y. 11952 Page 18 - January 11, 1991 Publ.ic IIearing - Gregory Fegos Southold Z . B .A. CHAIRMAN GOEHRINGER : We thank you veZ'y r,:uch for driving all the way out here . MR FECOS: I thank you and I apologize again . CHAIRMAN GOEHRINCER: No problem. Good night . I make a motion reserving my decision of .rcce_.sing it to the next- regularly scheduled meeting and clo;ling the hearing at ICI-lis point . I want to withdraw it. I rtiake a motion withdrawing my first decision . I make a motion C losing this hearing .and reserving "decision until later . All in favor - AYE. Appl . No . 3990 Applicant (s ) . ChoIuwsicy/CD.sola Location of Property: '340 tiortor: ' e. r,.ir:e, Southold County Tax Map ID No . 1000-55-1-9 The Chairntian opened the hearing a!: 8 : 40 p .m. and read the notice of tearing and application for the record . CHAIRMAN GOEHRINGER: I have copy of the site plan produced by Fairweather ,_:nd Broom Architects Designers frorr: 122 Front St. Greenport, 11Y dated 10/15/90 indic<:iting this particular site plan . Are there people in the audience: who would like to see this site plan prior to the discussion of this hearing? AUDIENCE: Can I ask a questiorr? Is that similar to the map that appeared in Thursday' s Suffolks? CHAIRMAN GOE:IRINGER: I think it is . Of course it ' sareduced a great amount . AUDIENCE: Yes . CHAIRMAN COEHRINGER: That ' s why I asked you are welcome to. Yes sir . AUDIENCE: I would like to see it. CHAIRMAN GOEI;R_INGER : Sure . what we will do here at this particular point then is just allow anybody that would like to take a loot; for a couple minutes . Who would like to be heard on behalf of the- applicant? Mr . Mcl,aughlin?. MR MCLAUGHLIN: Thank you Mr . Chairman and Members of the Board . I 'm here on behalf of the applicant Michael Cholowsky. Basically what we have here is an approximately 17 acre ... !It' .M .N �- _ .. .. r ... .. - .. .... - .. s�..'�....F.rtt .•.R+'• 5 .r. �"+�"�. y... ..ti.• nQ'-t.:.yc. Page 19 January 11, 1991" Public Hearing - Cholowsky/Casola Southold Z .B.A. parcel of - property- on Horton's Lane which is almost directly across the street from existing Lucas Fora facility. What the applicant proposes. ' to do is erect . a driving range miniature golf and .relat.ed building and facilities . What we are here for this evening is a vc�r,,r limited issue . The zoning...code. of this. Town has. a- regulation as far as .this s,pccial exception use and the agricultural conservation district which makes •_it a requirement that any type of facility like this must.. be open-.1tcd as, a not--for-profit type of business . I have submitted -to this. Bo.,.ru a memorandum -af law and I think At 's -very clear i,n my mind from my research that the courts of this .state will not allow such a provision to prevail . It ' s the pruvince: of zoning �inl planning to limit and control ,the use; to which a property is put . It is not the province of zoning or planning to attempt to dictate who can use the property and wh,_It this provision of the special exception use doer1 is try t o limit that type of entity which can operate this kin(I of business . I think if you have had a chancy_ to rcvicw rr:y attercmoranclum you ' 11 see that all the courts of the state including the highest court , Court of ,Appe:als, have ruled t:hal: such limitations are illegal nullify basically. -0 wl-,�t we are here for this evening is simply that vQiri,rYce . To allow us to go forward with an .applicat.ion :.for:. :_r special exception and a :'site plan. approval from the Plaririin(d Board on behalf of tx operation that is- goiny,..to be run zs a business profit operation . CHAIRMAN GOEHRINGER: This is a *,r Di tric:t? MR MCLAUGHLIN . That._ is, co.rrect ...- Any of the issues - concerning the -manner .in 'which 'tilis operation shall be conducted or how it shall be built and operated really I thin], should rnorc: properly`ref.?.�,�:tecl 1'n future hearings regarding.-special exception ,use and o- siF plan approval . This again is a very limited is:lue .t,nat wc-, are here before this Board tonight . . We ar-e Certainly happy to discuss the project, to answer any- .questions that any one may have in relation td 'they-•project- and Mike Cholowsky and his father ,are here and if there any questions we would be happy to address them. CHAIRMAN GOEHRINGER: Will there. be any lighting on the driving range? MR MCLAUGHLIN: Yes I believe that shows, on the site plan . The lighting that will be directed basically outward from the tee area- to the landing area for the golf balls . CHAIRMAN GOEHRINGER.: The only -other-question I have is the issue that you are ,,actually looking for . I :_a ;sume what yyou. . t Y A ( r 3 yn Y- Page 20 - January ll, 1991 Public Hearing - Cholowsky/Casola Southold Z . B.A. are looking and correct me if I 'm wrong, Mr . McLaughlin, you are looking for either relief from that number which is number 7C at 100-31 page 1041 which says "such use shall not be conducted for profit. as a business enterprise . " MR MCLAUGHLIN: I am looking. for relief from that avid allowing us, to if we can obtain future necessary approval; from this Board in the way of a special exception and from the Planning Board a site plan approval to be able to operate for business purpose . Not as a not� or-profit type of operation . CHAIRMAN GOEHRINGER: My only concern is that I assume th�tt we have pre-exiting golf courses and we ',.lave a pre-existing miniature golf course and we used to have a pre-existing driving range in the Town of Southold . Tf we were to relieve _this condition, or to vary it lomewl-iat:, this would cause a precedent, so to speak, within the Town . That is my only concern at this point. It could not only affect this particular project but many other projects and that is my ultimate concern . I . have heard of discussions of construction of a 200 acre golf course in Laurel, which would certainly not operate unless it was operztei1 for profit . MR MCLAUGHLIN : Unless it was a private club . CHAIRMAN GOEHRINGER: Similar to North Fork Country Club. I have also heard discussions about Islands End being profit or not--profit I really don ' t have that at this particular point and it is probably pre-exists -oning anyway. That 's my mail: concern at this point . Do you have anything you would like to say in that area' MR MCLAUGHLIN: well I think obviously every application has to stand or fall on it 's own merit . I Suppose there is legitimacy to your concern and people would certainly come back and point to this . if I 'm denied the relief at this point obviously I think I have no alternative but to go forward and again I 'think the precedents that I have provided to you in my memorandum of law would indicate that I will ultimately prevail probably. If that were true if I had to go that route and I did prevail then that portion of that zoning ordinance would then be gone throughout the: Town. It would then not be lin-iited with my application. CHAIRMAN GOEHRINGER : I .think what you had better let us do is recess this hearing to the next regularly scheduled monthly meeting and in the interim we will discuss your memorandum of the law with out. T.own Attorney and we will go from there ., .Now that is.' not _meaning. that we .will have it in r`a:t.-L..t..:h�d.s:i^a..�.. l !'3. ..r: 4..;..enY 4 fn hii:f '�1:+. .,,.i." ..-.. .. .., .. ...3. a r .M7.:"�. i ..Mx ..._ s :,......r.,. ill.v t •!C ' 'Page 21 .. - `January 11; .19.9"1_ . .. ... - Public Hearing .- Cholowsky/Casola Southold Z .B.A. the early part of . FFbruary, . it will be the- one In the later part of February. MR MCLAUGHLIN: . . P'fy only,: °ref gty Y I. t hat vi , es, t'�°y t-o rici this along as expeditiously as possible b_ez-a_rse obviously we do ha-ve 'other, assuraing that wo get-beyond this stage., we do have other hurdles, to overc_or(lc_ d wc' would 1_ijie to progress as quickly as passible: . CHAIRMAN GOEHRINGER: ' Are your applicants, contract vendees or . do they own the property? MR MCLAUGHLIN: They aiie 7.ot'ic; term 1 Etas es with option to purchase . GHF,IRMAN .GOEHRINGER: I dort ' t pra.rl:iC.,U I early •i:ant. to tcs be honest with :you, continue this to any great degree what I want to do is Just disco ,s .it with the. Town Attorney. We have been very busy on otlon,_ and all the rest of it I have not gotten chance to discuss, -this with them. I should point out for the audience . that it Is the nature of this Beard that when a person brings a hearing before our calendar that: we d'o hear the., case and we do appreciate- everybody coming out here . I just want to Mention for the audience again that you have . the perfect rigl;t to :-,r,c;,zk tonight that this Is a preliminary meeting for that ;yolk; pu _po: a of dealing with the issue of ' not-fbr-profit J13 opposed to profit which exists in the code. MR JOHNSON: I -live 'on Hoar_-o;x ' - Lane . It' s my understanidinq, the previous speaker.' this-- point- of. law would . allow him to' build a fa renderi.rrg plant for any particular business '.iie= de-c.iaed to bt;ild I 'm I correct in that . CHAIRMAN GOtHRINGER: ,I' don' t.- know because I .haave not completel-y- reviewed . the. metaora-ndc.ira of law.:. That: -is :a question however though. After: we. give the Town Attorney a. copy of this that .you ,might ask the Town.-.Attorney. MR JOHNSON: If it-'seems'- so unusually" wrong to be able to do that . CHAIRMAN GOEHRINGER: There. is An que ,tion that when I sat with the gentlernon: who " immediately sits to my left and should mention this gent1emen ..has : been .on this Boar•d. for 35 years along with. gentlemen that, is- ji:tst in the hospital . I asked him uniquely; at a"point mee:ting .with the hoard of Appeals " from the Inc. Village.. of...Creenlaort aria the State came: down and we were deal-ing. with . a, -training sessiuri . .. I said to. him "Charles Grigonis tell me why what brought zoning to the Town of, Southold? Fie:: told. me.' that. _somebody wanted •to build a =,f. .SsSi:c*��•, �t�... .-,_. r .. _ .._. -. . .-.. .t.> .. _:.xe. ...�, ...-e E. _. _.�.c-�_ .>.. .. ,..e6,.,,r. Page 22 - January 11, 1991 Public. Hearing - Cholowsky/Casola Southold Z . B.A. sauerkraut factory in a residential district . That is basically, if that answered your question, fine . MR JOHNSON: Thant: you very much. MR MCLAUGHLIN: If I could just briefly respond to that . My application is not to allow urn to do any kind of profit business that we want to do there , My application is simply to allow us , •to operate, in our particular instance, the golf driving range and miniature golf for profit as opposed not-for-profit: As far as the public would be concerned, there would be abc<olutuly no difference between the two operations . To walk upon the site you would see absolutely no difference between a profit and a not-profit . We are not: proposing to Flo anything other then what is allowable as a special exception in the AC District . We are merely asking that as opposed to having to form a not-for- profit corporation and operate a business without making :_r profit. That we will ,be able to do it as a regular business corporation, partnership or individual ownership . CHAIRMAN GOEHRINGER : Please understand that I am not comparing your clients project to a sauerkraut factory or anything of that nature because: I am riot . MR MCLAUGHLIN : I was basically responding to the question and we are limited to what we could ever hope to be able to do under a special exception to those uses that are allowable for special exceptions . MR WINTERS : I live. on Horton: Lane . I would like to address instead of going into my feeling about whether or not a driving range constitutes a golf course and speak to the question brought up by counsel of the applicant and due respect to Lawyer McLaughlin. The ,wording on this I went back to the zoning book and when you get into a AC District it talks about preservation, it tal'-::= about re sidc:ntial. development with a minimum of two acres . It talks about certain exceptions, 'maybe a two family home, possibly a nursery, a church, things like- that . A golf driving range seems a .far cry, to me, from being anything with any kind of agricultural or conservation orientation . It ' s a business pure and simple and it belongs . in the business district, not in a residential district which AC is . In fact AC is probably more restricted in terms of residential zoning then is a pure RE. Because it addresses the wide open ranges and the preservation of the flavor of the Town . The agricultural flavor of the ' Town. In any event,. getting down to the possible exception uses, one of them refers to and I 'm going to read if .I may, beach clubs, :tennis clubs, . country clubs, Page 23 - January 11, 1991 Public Hearing - Cholowsky/Casola Southold Z . B.A. golf clubs, public golf course ,, I presume that would be something like the county course in Riverhead, an annual membership clubs catering exclusively to members and their guests -. When the conditions of that, I 'tn trying to get to Lawyer McLaughlin' - . point . Is that such use shall not be conducted for profit as a business enterprise . - It ' s my guess in reading this and thinking about it a little bit, that the authors of the zollilzg law put that in there for very a specific purpose because they knew that- beach clubs, tennis clubs, country clubs, 'golf clubs, .public golf courses that wouldn' t apply, but that 's a little dfferent . An annual membership clubs " are -not-for-profit . Thore . maybe some eXCEptiGlla .tG that l.i],c;: . I;.1:,r:d � End which You said pre- existed zoning anyway. A private membership only exclusive membership only Nort,-h Furl: Country Club. For example : Developers flock to these clubs to build residential area , residential homes surrouncling them, bec use tt enhance.; the value of a residence :rather then retracting from it . As I suspect that a golf or driving range; and miniature golf Is that you probably would with lights and this type of thing . I don 't think anybody is going 'to flock to put in a residential subdivision surrounding a golf or driving range . I believe that to take the. fOr profit or the not-for profit issue- pull it uut separately and try to deal with it alone is not the intent of tk-le ,gay zGili.rcg I: y it ' s authors . i think is unfair to -zo,r,ing s3ection as a whole to try to fracture what. was ori,g:inally scet- ou+-. It is in. there a:s u condi.tion:. 4- rnaka sure-that . .f• a golf club does go in to a AC area, -a- residential aze a, it .Is in Indeed a private, exclusive golf club that: is going to enhance the residential area, blend in with the _;residential area and riot be. Sorcicthing. other then that . Not-for-profit i •' a different issue from that and I„ don 't- think that it. Carl he dealt with separately. . It is ° the ..rnl'y- thing that vie are allowed to talk about tonight . You can ' t do . that because .1.f we dry. 1t 's just wrong. : This is not 'the way this. was written . It can ' t be done that way. CHAIRMAN GOEHRINGER:' Thank , you. MR MORT'IGER : I own property on North Sea Drive and T Second his opinion . MS FISTIER : I live at the -very , end of IIGrtons Lane and I would like to say, that I ,agree .with everything t.h,at Mr . Winters just said . MR BOOS : - Horton!s .bane.. ._.Considering the situation here arid . I 'm not going 't:o .say very, much-except that I consider . the fact' that_ Lucas-.Ford is across the street. is rar'etty Page 24 - January 11, 1991 Public Hearing - Cholowsky/Caso'la Southold Z . B.A. distressing already and I don 't feet that more distress is necessary. — MR PATAGLIA: I live on Horton ' s Lane . I agree with Mr . Winters . In addition we, there are many people in this area that don' t, haven 't heard about this plan going in . Haven' t been advised and haven ' t had a .chance to come up here and oppose it . If we could get- a continuance . CHAIRMAN GOEHRINGER : That is . what we are going to do tonight . Thank you . MR REGAN: I also live: on Hortons Lane . We feel very strongly about thi; . of all there will be a great dual of traffic, there will bc: lights . What we ure really concerned about is that it could turn into a like it did in Farmingdale some yuars ago . We are very much upset over the idea of not having a continuance until all of our people are available to come !-iere and talk about it . CHAIRMAN GOEHRINGER: T}nank you . MTV STOLLMEXER : I live on S.oundvicw Ave near the corner of. Horton 's Lane and want to agree with all of the former speakers . CHAIRMAN GOEHRINGER: Thank you sir . MS LEPRESTI : I also live on Horton ' s Lane :and I am very reluch opposed to this whole proposition . We are very worried . CHAIRMAN GOEHRINGER: Thank you . MR MCLAUGHL,IN: Just a Coup16: of points t:o r_eiter«te . Whether this operation is done as a not-for-profit operation or whether it is done as a profit operation it ' ; the same facility. Secondly if it is '.n.ot a special exception usr in this district there .is no other district within the Town of Southold in which it falls . This is the specific districL in which an operation such as this sort was put into the zoning ordinance and it 's my position to this Board that the attempt within that ordinancr. .to limit it to a. type of person that can own and operate that business is illegal . It cannot be done lery.a.11y. That Is the sole point t}nat I, want to make to the Board this evening . Again -assuming that we goon to the next step any and all questions; regarding the Factual operation of the facility will be open again to public comment as well. an continuation of thi ; }nearing. We are happy to ;it clown and talk to- people about this at any point in time and sec if .we .can overlay some fears . aL Page 25 January 11, 1991 Public Hearing - Cholowsky/Casola Southold Z .E.A. CHAIRMAN GOEHRINGER: Thank .you. We thank you all for coming in. We will continue this hearing around mid February. We will readvertise-it- in •she - iriterim: -Everybody thank you .for your courtesy and have a safe trip home . Hearing no further comment I make a motion. to recessing it to the next regularly scheduled monthly meeting . All in favor - Nye . Appl . No . 3993 Applicant(s ) : Kenneth L . Edwards Location of Property: T;',, Gloaming, Fisher-s- Is1an County Tax Map ID No . 7.noo- The Chairman opened the ''hearing at 9 : 05 p.m. aru3 lead the notice of hecirInc, and ;pplic:ation for the. record . MR DOYEN: I have v1 V,ed the :3 t t e bd_�cause of tIic. topography this is the only practi.r.a? sitf-:. on this lot for an .I ccc_ssOly building . CHAIRMAN. GOEHRINGER: Is it ,Z one story building? MR DOYEN: It will be one story building. CHAIRMAN GOEHRINGER: Not to r•:,ceed how high? MR DOYEN: Less then the ordinance limit . CHAIRMALT. GOEHRINGER: To, be used strictly for storage? MR DOYEN: Strictly .for a storage garage for an automo"pile and storage . CIiAIRMIAN GOEHRINGER.: Wha t type of ut i l i t i c; ;? MR DOYEN: Possibly electricity but no water, no other utilities : CIAIRMAN GOEHRINGER : No" heat? MR DOYEN: No' heat . CHAIRMAN COEHRINGER: I have- no .ott►c'r quest.ion No further questions? MR DOYEN: The only ,th,i,ng I ' ll add it certainly can ' t be objectionable to 'anybody else-:because of if 5 location. It ' s more- or less - in the center .of 'h,is lot as it: ,.work:, out. . .. Ct✓s'ti+:1`.¢..ut.�..v .34 ..-,. .. .w,,.. . ..44:i+v 1 .. -....!.s.++..,✓ h . .. .. .-i-. -.. .. .y _ ....:.J_ ... .'.,i. ^'3. ..k. .... ..x... .Z.C.<Y.'F t�La�.[f1.L.._.,..�..-�, I �EAATLA Mr 828 FRONT STREET,P.O.BOX 803 GREENPORT,NY 11944 ( ` Pik [� (516)477-1016 January 8, 1991 Southold Town Board of Appeals Southold Town Hall Main Road Southold, New York 11971 RE: APPLICATION OF MICHAEL CHOLOWSKY Gentlemen: Enclosed herewith please find Memorandum of Law with regard to the subject application. If you have any questions, please feel free to cont -t me. Very tru y J. vin 'tic ughl ' n JKM/lmt enclosure HAND DELIVER CS Q�7 0 "X APPLICATION OF MICHAEL CHOLOWSKY, TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW TOWN OF SOUTHOLD X FACT. This is an application 'to the Southold Town Zoning Board of ,I Appeals for a variance to the Southold Town Zoning Ordinance, Article III, Section 100-31B(7) (c ) concerning the proposed establishment, I I� construction and operation of a golf driving range, a miniature golf course and building with office accessory and incidental thereto . The subject premises is known as 3340 Horton ' s Lane, Southold, New York, bears County Tax Map Parcel I . D . No . 1000-55-1-9 and contains 16 . 7t acres . Said property is owned by Lorindo C . Casola and the applicant is the holder of a long-term lease thereon with an option to purchase . Applicant has applied to the Southold Town Building Department for a building permit, but a Notice of Disapproval has been issued, stating that the applicant requires both a special exception . and a variance . Section. 100-31B(7) (c ) states that any of the special exception clubs and uses allowed within said Section " . . . shall not be conducted for profit as a business enterprise . " It is the applicant ' s contention that the purported limitation of such special exception uses to not-for-profit enterprises is clearly illegal and that a variance should be granted allowing the applicant to conduct such a use as a business enterprise for profit . f �I I ' I I LEGAL ARGUMENT Article 16 of the Town Law regulates zoning and planning by - the various towns within the State of New York , Section 261 thereof establishes the power granted to the towns by the State of New York and reads as follows : For the purpose of promoting the health, safety, i morals, or the general welfare of the community, the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such _. part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that part of the town outside of any incorporated village or city . The town board is hereby authorized and empowered to make such appropriation as . it may see fit for such charges and expenses, provided however, that such appropriation shall be the estimated charges and expenses less fees, if any, collected, and provided, that the amount so appropriated shall be _ assessed, levied and collected from the property outside of any incorporated village or city , Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained . Nowhere in said section is there any grant of power to regulate the form of ownership of property within the context of the zoning and planning authority of a town , In fact, cases are legion i i } that such a power to regulate the form of ownership does -,not and cannot exist , Indeed, it is a fundamental rule that zoning deals basically' with land use and not with the person who owns or occupies it . (See tter --of Dexter- V . Town Board, 36 N . Y . 2d 102, 105, 365, N . Y . S 2d 506, 324 N . E . 2d 870; accord, latter of Weinrib V . Wiesler, 27 N .Y. 2d 592, Ill N .Y. S . 2d 407, 261 N . E . 2d 406, Aff-q 33 A . D . 2d 123, 317 N . Y. S . 2d �I 603; Allen V . Town of North Hempstead, 103 A .D . 2d 144, 146, 478, (� N . Y. S . 2d 919; North Fork Motel V . Grigonis, 93 A .D . 2d 883, 461 N . Y . S . 2d 414; See, Matter of Park W . Vil Assoc V Abrams, 65, N . Y . 2d 716, I) 492 N .Y. S . 2d 27, 481 N . E . 2d 567) . Annexed hereto are copies of the i I� North Fork Motel V . Grioonis and FGL&L Proaerty Corp . V . City of Rve 'I decisions . It is absolutely clear and certain from the foregoing cases that the attempt in Section 100-31B(7) (c) of the Zoning Code to restrict the allowable special exception uses to not-for-profit entities is a legal nullity . As expressed in all of those cases, it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulations . The decisions of all levels of courts in this State, including the Court of Appeals (the highest level court in this State) are uniform in holding that a zoning ordinance may not regulate the form of ownership of property, as distinguished from regulating the use of said property . i I II II i CONCLUSION +� The Southold Town Zoning Board of Appeals should grant the requested variance to allow the applicant to establish, construct and ! operate a golf driving range, miniature golf course and building with accessory office thereto under any form of ownership, including a I business enterprise for profit, which said applicant deems appropriate . Respectfully submitted, i J . KEVIN MCLAUGHLIN Attorney for Applicant, Michael Cholowsky 828 Front Street, PO Box 803 Greenport, New York 11944 i (516) 477-1016 i i i 414 461 NEW YORK SUPPLEMENT, 2d SERIES ;: Wickham, Wickham & Bressler, P.C., Smith Mattituck (Eric J. Bressler, Mattituck, of 93 A.D.2d 883 & Yakab( counsel), for appellant. NORTH FORK MOTEL, INC., Riverhead Posner & Posner, Mount Vernon (Linda Respondent, Esseks, S.Jamieson, Mount Vernon,of counsel),for V. "' head (St( William Sirignano, receiver-respondent. counsel 1 3s... )� Charles GRIGONIS,Jr.,et al.,constituting Before GIBBONS, J.P., and GULOTTA, the Zoning Board of.Appeals of the: Before O'CONNOR and NIEHOFF, JJ. Town of Southold et.al., Appellants..: 'BRACKE MEMORANDUM BY THE COURT. Supreme Court, Appellate Division, - "y MEMO. In an action, inter alia, for a declaratory Second Department. In judgment to determine the ownership of a i CI publishing house, defendant appeals from April 25, 1983. peal s fr Court,Su an order of the Supreme Court, Westches- which an: ter County, entered September 9, 1982, • which, upon the respondent receiver's mo- Town zoning board of appeals appealed inspectors tion to punish him for contempt of a prior from a judgment of the Supreme Court, 1: Hinderma order of the same court, adjudged him in Suffolk County, Gerard, J., which annulled December {' contempt and permitted him to purge him- determinations of building inspectors and a terminati, self thereof b inter alia rendering an g p. of the T; }, y, g determination of the zoning board of a 1981, whi account. peals which denied applications for permis- rt for permi Order reversed,without costs or disburse- sion to change .the.form of ownership of -.:. :;:::..: ership of ments,and matter remitted to Special Term certain premises.• The Supreme Court, Ap- for further proceedings consistent herewith. ellate Division, held that special term cor, Judgmc ,. p p `, �:;:::`. : ._bursemen [1,2] The record before this court fails rectly. concluded that the conversion of v, F to indicate whether defendant was ad- ownership of the subject property from a [l,2] �`. judged guilty of civil or criminal contempt, corporate form to a condominium form was .. ` ployed by t and at the hearing which must be conduct- not violative of the town zoning ordinance; miniums ed, the course being pursued must be made provided the property's use as a motel re- M minium i clear. Adjudging defendant to be in crimi- mained unchanged. rather th nal contempt is not warranted on this rec- Affirmed. x , proper cc . ord, as there is no finding that the alleged planning disobedience of the prior order of the court Maplewo( was willful,and similarly an adjudication of "`' wood Vil. 1. Zoning and Planning *-72 . i civil contempt is not warranted because Bridge F there is no finding that defendant's actions Zoning ordinances cannot be employed P... park, 11, were calculated to or actually did defeat, by a municipality to exclude condominiums s Nor does impair or prejudice the rights and remedies or discriminate against condominium form: ownershi _ of the plaintiff(see Matter of Ross v. Sher- of ownership, for it is use rather than form y ., valid exi: wood Diversified Servs., 88 A.D.2d 936,450 of ownership that is proper concern and of Miami N.Y.S.2d 872). focus of zoning and planning regulations .:. minium.1 Also,defendant denied that he had failed McKinney's Town Law § 261. `;'; Court As to turn over any assets of Queens House,as , Chapel I. y was alleged by the receiver. Questions of 2. Zoning and Planning (2-76 418). Ar fact were raised on that and other issues Special term correctly concluded that conclude( that could not be resolved without a hear- conversion of ownership of property. from ., r :,; of the st ing(see Crisona v. Eastern Props. Improve- corporate form,to condominium form was ':: form to a .::.:... ment Corp., 27 A.D.2d 717, 717-718, 277 not violative of town zoning.ordinance pro-' { '°• of the z. N.Y.S.2d 477; Kamen v. Kamen, 13 A.D.2d vided property's use as a motel remained Southold, 985, 216 N.Y.S.2d 715). unchanged. McKinney's Town Law § 261.. c,.;:,;: .,.Use as a , } ' �i Y.i.i•-;i MEDARIS v. VOSBURGH 415 Cite as 461 N.Y.S.2d 415(A.D.2 Dept. 1983) Smith, Finkelstein, Lundberg, Crimmins +: & Yakaboski, Riverhead (Frank A. Isler, 93 A.D.2d 882 . Riverhead, of counsel), for appellants. Virginia C. MEDARIS, Respondent, Esseks, Hefter, Cuddy & Angel, River- V. head (Stephen R. .Angel, Riverhead, of Lee Frederick VOSBURGH, it counsel), for respondent. ituting fi al., Defendants, . of the x Before MANGANO, J.P., and GIBBONS, allante. BRACKEN and NIEHOFF, JJ. Bruce Robert Heinzen et al., Appellants. on, Supreme Court, Appellate Division, MEMORANDUM BY THE COURT. Second Department. In a CPLR article 78 proceeding, the ap- peal is from a judgment of the Supreme April 25, 1983. '• Court,Suffolk County,entered July 1, 1982, which annulled determinations of building ; oealed inspectors George H. Fisher and Edward F. In medical malpractice action to recov- Court, liinderman, dated February 13, 1980 and er damages for personal injuries, plaintiff dulled December 22, 1980, respectively, and a de- refused to answer certain interrogatories and a termination of the Zoning Board of Appeals propounded by defendant. The Supreme f ap- ©f the Town of Southold, dated June 25, Court Suffolk County,McCarthy,J.,denied rmis_ 1981, which denied petitioner's applications defendant's motion to compel answers to i for•permission to change the form of own- p of ership of certain premises. . interrogatories, and defendant appealed. AP- The Supreme Court, Appellate Division, i cor- Judgment affirmed, without costs or dis- held that trial court erred in denying de- es n of bursements. fendant's motion to compel on basis that )m a interrogatories did not ask for facts but for 21 Zoning ordinances cannot be em- (1, was opinions and amplifications of allegations of ployed by a municipality to exclude condo- .::,;.• ante miniums or discriminate against the condo- negligence, especially where plaintiff had re- g failed to make timely motion to strike chat- minium form of ownership, for it is use Y rather than form of ownership that is the lenged interrogatories. proper concern and focus of zoning and Order reversed; motion to compel an planning regulations(see Town Law,§ 261; w ',} savers granted. Maplewood Vil. Tenants Assn. v. Maple- Rood Vil., 116 N.J.Super.372,282 A.2d 428; Brix"` Bridge Park Co. v. Borough of Highland "^:s s,.. eyed 1. Pretrial Procedure �284, 305 _ .Park, 113 N.J.Super. 219, 273 A.2d 397). ums Nor does the mere change in the type of In medical malpractice action, trial arm p court erred in denying defendant's motion ownership result in the destruction of a Yi g )rmvalid existing nonconforming use see City to compel plaintiff to answer interro ato- of,lfiami Beach v. Arlen King Cole Condo- ries on basis that such interrogatories did ins. minium Assn.,302 So.2d 777[Fla.]; Graham not ask for facts but for opinions and ampli- Court Assoc. v. Town Council of Town of fications of allegations of negligence, espe- 6 Chapel Hill, 53 N.C.App. 543, 281 S.E.2d cially where plaintiff had failed to make ''x> 418). Accordingly, Special Term correctly timely motion to strike challenged interrog- iat :. concluded that the conversion of ownership atones. McKinney's CPLR 3101(a), 3124, >m of the subject property from a corporate 3131 3' 3(a). ` iu 'as form to a condominium form is not violative g 2. Pretrial Procedure ea242 ? �" �"of the zoning ordinance of the Town of ed Southold, provided the property's present Purpose of interrogatories is distinct 'z_ �1. we as a motel remains unchanged. from that of bill of particulars; while inter- a:' 6. FGL & L PROPERTY CORP. v. CITY OF RYE 333 Cite as 486 N.Y.S.2d 333 (A.D.2 Dept. 1985) N.Y.2d 942, 298 N.Y.S.2d 724, 246 N.E.2d miniums, was invalid, since 'it constituted 527). improper regulation of form of ownership of property. T3. Zoning and Planning c-61 Y NUMBER SYSTEM Municipality does not have power to regulate manner of.ownership of legal es- tate, as it is use rather than form of owner- 109 A.D.2d 814 ship that is proper concern and focus of FGL & L PROPERTY CORP., zoning and planning regulations. - Appellant-Respondent, V. Weil, Gotshal & Manges, New York City The CITY OF RYE, et al., (Peter Gruenberger, Lesley E. Goldberg Respondents-Appellants. and Robbie Narcisse, New York City, of Supreme Court, Appellate Division, counsel), and Berger, Steingut, Weiner, Second Department. Fox & Stern, New York City (Theodore S. Steingut, New York City, of counsel), for " March 18, 1985. appellant-respondent (one brief filed). Richard M. Gardella, Corp. Counsel, Rye, Action was brought seeking to have for respondents-appellants. declared unconstitutional an ordinance Meighan & Necarsulmer, Mamaroneck which purported to create new zoning dis- (Garrison R. Corwin, Jr., Mamaronick, of trict, applicable only to one person's 22— counsel), for friends of Marshlands, Inc. acre lot, and which directed that purported and Federated Conservationists of West- district be maintained in single ownership chester County, Inc., amici curiae. and that any development of property be Before LAZER, J.P., and MANGANO, limited to residential condominiums. The BRACKEN and NIEHOFF, JJ. k• Supreme Court, Westchester County, John ' C. Marbach, J., denied injunctive relief MEMORANDUM BY THE COURT. against enforcement of ordinance pending In an action, inter alia, for a judgment hearing to determine if ordinance was con- declaring Rye City Code § 197-13.2 invalid fiscatory, and appeal was brought. 'The and unconstitutional, plaintiff appeals, as Supreme Court, Appellate Division, held limited by its brief, from so much of an that ordinance was invalid since it consti- order of the Supreme Court, Westchester tuted improper regulation of form of own- County, entered March 5, 1984, as denied ership of property. injunctive relief against the enforcement of Reversed. that section of the city code pending a hearing to determine if said section was 1. Zoning and Planning al confiscatory with respect to plaintiff's property, and defendants cross-appeal from Zoning is concerned with use of land, so much of the same order as denied their and not with person who owns or occupies motion for summary judgment declaring it. said section of the city code valid. 2. Zoning and Planning 0-61 Order reversed insofar as appealed from, Ordinance which purported to create on the law, with costs, the second and third new zoning district, applicable only to one decretal paragraphs thereof are deleted, person's 22—acre let, and which directed and it is declared that Rye City Code that purported district be maintained in § 197-13.2 is invalid as it constitutes an single ownership and that any development improper regulation of the form of owner- of property be limited to residential condo- ship of property. In 334 486 NEW YORK SUPPLEMENT, 2d SERIES The ordinance in question purports to In light of our determination, we do not create a new zoning district,applicable only reach the other issues. to plaintiff's 22-acre lot. The ordinance further directs, among many other things, w that the purported district must be main- o TI(fY NUMBER SYSTEM tained in single ownership, and further pro- ,. vides that any development of the property, 109 A.D.2d 815 ,which is severely restricted, be limited to FIRE ISLAND PINES, INC., residential condominiums. Respondent, [11 As a fundamental principle, zoning V. is concerned with the use of the land, and COLONIAL DORMER h not with the person who owns or occupies it (see, e.g., Matter of Dexter v. Town Bd. CORP., Appellant. of Town of Gates, 36 N.Y.2d 102, 105, 365 Supreme Court, Appellate Division, N.Y.S.2d 506, 324 N.E.2d 870; Matter of Second Department. Weinrib v. Weisler, 33 A.D.2d 923, 307 i N.Y.S.2d 603,affd. 27 N.Y.2d 592,313 N.Y. March 18, 1985. S.2d 407, 261 N.E.2d 406; North Fork Mo- ,�^ tel v. Grigonis, 93 A.D.2d 883, 461 N.Y. Default judgment was entered against SFr• S.2d 414; Allen v. Town of North Hemp- roofing company in action for damages al- stead, 103 A.D.2d 144, 478 N.Y.S.2d 919). legedly resulting from defective work. [2,31 The instant ordinance, which pur- The Supreme Court, Nassau County, John k ports to direct how the property may be W. Burke,J.,denied roofing company's mo- held to the exclusion of all other forms of tion to vacate, and it appealed. The Su- a ownership, must fail because, as a general preme Court, Appellate Division, held that principle, a municipality does not have the where complaint was properly forwarded to -- v4z power to regulate the manner of ownership insurer, which neither filed an answer nor F.. of a legal estate, as "it is use rather than denied coverage,roofing company was enti- form of ownership that is the proper con- tled to have resulting unintentional default =� tern and focus of zoning and planning reg- judgment vacated, particularly in light of ulations" (North Fork Motel v. Grigonis, evidence of meritorious defense, and ab- ' supra; see also McHenry State Bank v. sent claim of prejudice by opposing party. City of McHenry, 113 Il1.App.3d 82, 68 Order reversed; motion to vacate Ill.Dec.615,618,446 N.E.2d 521, 524; CHR granted. Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E.2d 788, 791; Bridge Park Co. Judgment a143(3) v. Borough of Highland Park, 113 N.J.Su- Where insured roofing company for- per. 219, 273 A.2d 397, 399; County of warded complaint alleging defective work Fayette v. Cossell, 60 Pa.Cmwlth. 202, 430 to its insurer through broker, broker as- A.2d 1226, 1228; Graham Ct. Assoc. v. sured roofer that insurer would provide "a Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer " N.C.App. 543, 281 S.E.2d 418). Although nor disclaimed coverage, roofer was enti- 5 in the majority of the above cases the gen- tied to have resulting unintentional default eral principle was invoked to prevent a judgment vacated, particularly in light of municipality from excluding the condomin- affidavits demonstrating meritorious de- ium form of ownership, and here the in- fense, and absent claim of prejudice by stant ordinance permits that form of own- opposing party. ership to the exclusion of all others, the result is the same. The city here has at- tempted to dictate how property may be Jay Berliner, Massapequa, for appellant. owned, and that is exactly what it is not Harold F. Damm, Mineola, for respon- authorized to do. dent. f' Hi i h C S _ i. L ,k1,r..`"-Y !"5 ri f��. v�i'� >>''"j y��r'N t•t t,.r-..,.a'3 ,a�?, lh 33;«Sit i.ut 1 7t x r i' ..• 1 s l 66 N.YZd 111 FGL & L PROPERTY CORP- v. CITY OF RYE 321 V.2d 108 Cite as 495 Nys.2d 321 (CLAPP- 1985) 485 N.E.2d 986 j (61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 ? n there- 1 (61N. N. 15[absent exercise of discretion by 66 N.Y.2d 111 at "any I the Appellate Division so egregious as to �1FGL & L PROPERTY lee due amount to an abuse of discretion as a mat- CORP„ Respondent, sums," ter of law, its exercise of discretion is not V. tem- reviewable by us]). The factors listed by Appellants. ') and the Appellate Division as the basis for its CITY OF RYE et al., periods reduction of the award to 257o' make clear Court of Appeals of New York. in. The that there was no abuse of discretion as a Appellate Di- Oct. 24, 1985. er sup- matter of law. Nor was the ; rich de- , vision required by Domestic Relations Law "to be § 236(B)(5)(9) to analyze each of the Property owner brought action seeking section factors stated in subdivision(5)(d) and give an injunction against enforcement of local `mainte- reasons as to each,it being sufficient under zoning law. The Supreme Court, Special both } subdivision (5)(g) that it set forth the Term, Westchester County, Marbach, J., .han re held the ordinance valid, and appeal was factors it considered and the reasons for its Appellate Divi- ppellate l decision" (Kobylack V. Kobylack, 62 taken. The Supreme Court, s lump N.Y,2d 399, 403, 477, N.Y.S.2d 109, 465 lion, 109 A.D.2d 814, 486 N.Y.S.2d 333, ie main- N.E.2d 829). reversed, and appeal was taken. The elations plaintiff's remaining arguments are ei- Court of Appeals,Meyer,J.,held that noth- ther pot before us on this appeal, unpre- ing in zoning enabling provisions of Gener- ilaintiff served or without merit. al City Law, historical preservation provi- i�e stat- sions of General Municipal Law nor land- award plaintiff's appeal,"the order of marks preservation provision of city code [9l On P distri- the Appellate Division should be affirmed, empowered city to mandate the manner to may be owned or held or to ? ?' sins no without costs. Defendant's cross appeal which property y .1 in lieu should be dismissed for want of aggrieve- impose upon the owner of a tract contain- of the ment, the modification made by the Appel- ing historic structures, or purchasers of A.D.2d properties neighboring the tract, the cost late Division having been in his favor. `sled 63 of rehabilitation or enhancement of the N.E.2d properties. 1.Y.S.2d WACHTLER,C.J.,and JASEN,MEYER, p P SIMONS, KAYE, ALEXANDER and'TI- Affirmed. .he con- _U1osum TONE, JJ., concur in Per Curiam opinion. vard of On review of submissions pursuant to 1. Zoning and Planning c-232 d to be _ section 500.4 of the Rules of the Court of Zoning laws are to be given strict cor_- essened Appeals (22 NYCRR 500.4): on plaintiffs struction because they are in derogation of age—in appeal, order affirmed, without costs. De- common-law rights. tenance fendant's cross appeal dismissed, without c-21 future. costs, 2. Zoning and Planning There being no inherent power to enact ,ipellate zoning or land use regulation, an ordinance award or local law provision for which legislative Ily if it delegation of power cannot be found is :cretion o@KEY nur+eea srsltM ultra vires and void. 'er Pro- �dfor`d 3. Zoning and Planning�5 Power to adopt zoning provisions not ;50, 458 expressly forbidden by enabling authoriza- ppellate trial tion may be implied where there exists he ta lie al independent justification for provisions it to be within the spirit of the enabling legislation. ausk" 322 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 111 \ 66 N.Y.2d 115 4. Zoning and Planning a61, 63 impose upon the owner of a tract contain- which in sevf Neither enabling provision for resi- ing historic structures, or purchasers of injunction ag dential zoning in cities, McKinney's Gener- properties neighboring the tract, the cost tion, a decla( al City Law § 20, subd. 24, nor section of rehabilitation or enhancement of the ultra vires, 1 containing cluster zoning authorization ap- properties. The order of the Appellate Di i; spot zoning plicable to city, McKinney's General City vision should, therefore, be affirmed, with l" well-consider( Law § 37, empowered city to enact zoning costs. damages and law requiring, inter alia,that lot containing ants moved f two historic buildings have a minimum I ing the local area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of wise dismiss not contain more than three and six units, land situated in the City of Rye (City) of ; cross-moved respectively, and that owner or purchasers approximately 22 acres on which are locat- +' in its favor. of properties neighboring tract supply cost ed the Jay Mansion;built in 1838''by Peter there were is ;3 of rehabilitation or enhancement of the Jay,son of John Jay,the first Chief Justice ality requirin. properties. of the United States Supreme Court, and as a hybrid 5. Zoning and Planning a61 another building known as the Carriage zoning and hi Neither historical preservation provi- House, built around 1912 in the Colonial )' was not inva sions in section of General Municipal Law, Revival style. There is some dispute be- j, ing and had McKinney's General Municipal Law§ 96-a, tween the parties concerning the historic or I; accordance H h f ifi i k mar significance o the .Carriage plan,and that nor landmarks preservation provision of land not lie with city code authorized city to enact zoning House, but for purposes of this opinion we assume that both buildings have such sig- x Defendants' i law mandating that entire 22-acre district was therefe remain in single ownership with developer nificance. It is unnecessary to detail the , to rehabilitate exteriors of two historic negotiations carried on from 1979 until k demonstratec 1983 between the City and plaintiff's prede- 1. section preve buildings, and proscribing use of any new cessor in title 1 and between the City and : nomic benefit dwelling unit until that rehabilitation had p cross motion been accomplished, thereby effectively re- plaintiff, and the various rezoniclg pro os- als that were made during those negotia- ed to the Ap quiring that cost of rehabilitation be shared its brief, frot by owners in district of units other than tions, although a few pertinent and uncon- tested facts developed during those negod- g: the sec buildings in question. ations are referred to below. fendants apL When acquired by plaintiff's predecessor order as dire( and denied Henry J.Smith and James G.Fine,White the property was zoned R-2,as were neigh . t11e section Plains fora appellants.pp boring properties, some of which were e Di Appellate_L12Peter Gruenberger, Lesley E. Gold- used, however, for public purposes or of- Appellat 333 berg, Robbie Narcisse and Theodore S. fice use under nonconforming uses. R-2 ferred only Steingut, New York City, for respondent. zoning permits single-family detached invalid re . ve section, re ( homes on not less than one-half-acre plots, s _U13OPINION OF THE COURT and plaintiff's property would have accom• action the modated 38 such dwellings. In June 1983, ty.„ MEYER, Judge. 109 A. the City Council adopted Local Law No. 33.) (We of - Nothing in the zoning enabling provi- 5-1983,which added a new section 197-13.2 consider the sions of the General City Law, the histori- to the City Code creating the Alansten t the zoning e1 cal preservation provisions of the General Landmarks Preservation District (LPD-A). the City act( Municipal Law or the Landmarks Preserva- As the revised zoning map demonstrates, late ownersh tion provisions of the Rye City Code em- and defendants do not deny, the only prop- ing in the hh: powers the City to mandate the manner in erty zoned LPD-A was plaintiff's 22 acres. of the Gener which property may be owned or held or to Plaintiff then began the present action, marks Pres( 1. Title has apparently been transferred back to not moot the appeal(Pacific Blvd.Assoc. v.City Code, upon l the predecessor by plaintiff, but the fact that of Long Beach, 38 N.Y.2d 766, 381 N.Y.S.2d 55, whether con there has been no substitution of parties does 343 N.E.2d 772). junction wit a 66 N.Y.2d 115 FGL & L PROPERTY CORP, v. CITY OF RYE 323 Cite as 495 N.Y.S2d 321 (Ct.App. 1985) which in seven causes of action sought an sions of the General City Law, empowered injunction against enforcement of the sec- the City to enact the section in its present tion, a declaration that�Lllait is invalid as form. We, therefore, affirm. ultra vires, unconstitutional, site specific, spot zoning and not in accordance with a II ;i well-considered zoning plan, and money The section as enacted declares that in damages under 42 U.S.C. § 1983. Defend- order to provide for flexibility in the City's ants moved for summary judgment declar- zoning "so that the significant historic ing the local law constitutional and other- buildings, the Jay Mansion and the Car- wise dismissing the complaint. Plaintiff ntlff nage House, and site features which char- cross-moved for partial summary judgment acterize this site ' ' " are preserved for in its favor. Supreme Court held that the future and that new construction be ;j there were issues concerning constitution- undertaken with care and consideration for ality requiring trial, but that the ordinance, these features and the environment", the as a hybrid containing elements of both new district is adopted. Subdivision B es- zoning and historic preservation regulation, tablishes standards for the new district, was not invalid as site-specific or spot-zon- which include that "[t]he lot as approved ing and had not been shown not to be in shall have a minimum area of twenty-two accordance with the City's comprehensive (22) acres and shall be and 115remain in plan,and that the section 1983 action would single ownership"; that "[t]he exterior of not lie with respect to legislative action. the Jay Mansion and Carriage House shall Defendants'motion for summary judgment be rehabilitated and the interiors converted was, therefore, granted unless plaintiff to residential use", for the Jay Mansion not demonstrated at a plenary trial that the to exceed three units and for the Carriage section prevented it from realizing any eco- House not to exceed six; that there be a nomic benefit from its property. Plaintiff's trapezoidal view way 90 feet in width at cross motion was denied. Plaintiff appeal- the rear of the Jay Mansion and 300 feet in ' r. ed to the Appellate Division, as limited b width at the southerly y property line; that its brief, from Special Term's order except the new dwelling units may not be occupied as to the section 1983 cause of action; de- until the exteriors of the Jay Mansion and 3 fendants appealed from so much of that the Carriage House have been restored and order as directed a trial on constitutionality the interiors converted to residential use and denied summary judgment declaring and available for occupancy and that a the section valid and constitutional. The bond be posted to assure such rehabilita- Appellate Division, 109 A.D2d 814, 486 tion and conversion; and that the applica- N.Y.S.2d 333, in a memorandum which re- tion for site plan approval be accompanied ferred only to the zoning aspect of the by, among other things, a draft condomin- section, reversed and declared the section ium offering statement together with a t "invalid as it constitutes an improper regu- draft of an easement and/or agreement for x lation of the form of ownership of proper- perpetual maintenance of the exteriors of ty. (109 A.D.2d, at p. 815, 486 N.Y.S.2d the Jay Mansion and the Carriage House. h' 333.) We agree that it is unnecessary to Neither the statutes authorizing enactment consider the constitutional issues and that of zoning provisions nor those dealing with €F the zoning enabling provisions under which historic landmarks empower the City Coun- the City acted do not authorize it to regu- cil to adopt a local law with such provi- late ownership, and hold further that noth- sions nor does anything in the Landmarks z ing in the historical preservation provisions Preservation chapter of the City Code sup- of the General Municipal Law or the Land- port its so doing. +1. marks Preservation chapter of the City ` Code, upon both of which the City relies, A whether considered separately or in con- [1-31 Zoning laws are to be given a t junction with the zoning enabling provi- strict construction because they are in der- ; Ti Y r ;1t z 324 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 115 66 N.Y-2 t. ogation of common-law rights (Matter of made with reasonable regard to the charac. f _.LL17notes 440 E. 102nd St. Corp, v. Murdock, 285 ter of buildings erected in each district,the + a differ. *. N.Y. 298, 304, 34 N.E.2d 329; see, Matter value of land and the use to which it may propert3 of Frishman v. Schmidt, 61 N.Y.2d 823, be put, to the end that such regulations minium 473 N.Y.S.2d 957, 462 N.E.2d 134). More- may promote public health, safety and wel- with th ' over, there being no inherent power to en- fare and the most desirable use for which - that the act zoning or land use regulation, an ordi- the land of each district may be adapted or, if di } nance or local law provision for which legis- and may tend to conserve the value of no indel: lative delegation of power cannot be found buildings and enhance the value of land f it of Sul : is ultra vires and void(Matter of Kamhi v. throughout the city." (Emphasis supplied.) which t' Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d Nothing in that subdivision speaks to owners]: 865, 452 N.E.2d 1193). Power to adopt ownership rather than use, and while it # Nor d provisions not expressly forbidden by the does not expressly forbid provisions relab f contains enabling authorization may, however, be ing to ownership, the City suggests noth- f applieab :. implied where there exists independent jus- ing within the spirit of zoning legislation such jus tification for provisions within the spirit of generally or this subdivision specifically Planning the enabling legislation (Collard a Incor- that offers justification for implying such 1 sonable porated Vil. of Flower Hill, 52 N.Y.2d 594, power. Indeed,the cases are legion, in this provides 602, 439 N.Y.S.2d 326, 421 N.E.2d 818). State and elsewhere which hold that"zon- Y ks land not Y [41 The enabling provision for resi- ing ` ' ` in the very nature of things has }. district dential zoning in cities is General City Law reference to land rather than to own&' I what th § 20(24).2 That subdivision empowers a (Vernon Park Realty v. City of Mount ;. . Plannin; c= city "To regulate and limit the height, bulk Vernon, 307 N.Y.493, 500, 121 N.E.2d 517) . . appropr and location of buildings hereafter erected, and that it is a "fundamental rule that (`. nance (. to regulate and determine the area of zoning deals basically with land use and N.Y.2d yards, courts and other open spaces,and to not with the person who owns or occupies f: N.E.2d regulate the density ofjLtspopulation in any it" (Matter of Dexter v. Town Bd., 36 town, 3 given area, and for said purposes to divide N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 I: the sec the city into districts. Such regulations N.E.2d 870; accord, Matter of Weinrib v. $' sates ai shall be uniform for each class of buildings Weisler, 27 N.Y.2d 592, 313 N.Y.S.2d 407, deviatio '. throughout any district,but the regulations 261 N.E.2d 406, a 33 A.D.2d 923 307 $ .ff9• � �', upon al: 4 in one or more districts may differ from N.Y.S.2d 603; Allen v. Town of N. Hemp- is accomm those in other districts. Such regulations stead, 103 A.D.2d 144, 146, 478 N.Y.S.2d houses shall be designed to secure safety from 919; North Fork Motel v. Grigonis, 93 1. opment fire, flood and other dangers and to pro- A.D.2d 883, 461 N.Y.S.2d 414; see, Matter owners] mote the public health and welfare, includ- of Park W. Vil. Assoc. v. Abrams, 65 sions, tl ing, so far as conditions may permit, provi- N.Y.2d 716, 492 N.Y.S.2d 27, 481 N.E.2d implied sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold, access, and the accommodation of solar en- as did the North Fork Motel case, that a ergy systems and equipment and access to zoning ordinance cannot be used to exclude [5I i sunlight necessary therefor, and shall be a condominium 3 The City correctly f of the 4 2. Subdivision 25 authorizes regulation and re- (387 Mass. 351, 439 N.E.2d 788); Bridge Park f, exist, tl striction of trades and industries and,therefore, Co. v.Borough of Highland Park(113 NJ.Super. i the hist - is not a source of power for the local law under 219,273 A.2d 397); Graham Ct.Assoc. v. Town . consideration. In any event, it provides no Council(53 N.C.App. 543, 281 S.E.2d 418); set r also rep greater support for Local Law No.5 than subdi- McHenry State Bank v. City of McHenry (113 hos Re vision 24,for it authorizes no more than control Ill.App.3d 82, 68 111.Dec. 615, 446 N.E.2d 521); a' N.H. 4 of where"buildings,designed for specific uses" Maplewood Vil. Tenants Assn.v.Maplewood WL 1 Cossell, may be located and of "the uses for which (116 NJ.Super. 372, 282 A.2d 428); but see, nald'. buildings may not be erected or altered." Goldman v. Town of Dennis(375 Mass. 197,375 }} Zoning 3. City of Miami Beach v.Arlen King Cole Condo- N.E.2d 1212); Griffin Dev. Co. v. City of Oxnard ! 4. The minium Assn. (302 So.2d 777 [Fla], cert denied (39 Ca1.3d 256, 217 Cal.Rptr. 1, 703 P.2d 339 (§ 281� 308 So.2d 118); CHR Gen. v. City of Newton [1985)). The general proposition is, however, t} what r.• 1 66 N.Y.2d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325 Cite as 493 N.Y.S.2d 321 (CLApp. 1985) J117notes that exclusion of condominiums is tained in section 96-a and article 5-K of ' a different proposition than requiring that the General Municipal Law or the Land- _ property in a given area be held in condo- marks Preservation provision of the Rye minium ownership. However, we agree City Code (ch. 117). with the Appellate Division's coni.clusion Section 96-a of the General Municipal that the distinction is without a difference, Law reads as follows: "In addition to any or, if difference there is, that there exists power or authority of a municipal corpora- no independent justification within the spir- tion to regulate by planning or zoning laws it of subdivision 24's zoning provision from and regulations or by local laws and regu- which the power to require condominium i ownership can be implied. lations, the governing board or local legis- .5 lative body of any county, city, town or Nor does General City Law § 37, which village is empowered to provide by regula- contains the cluster zoning authorization tions, special conditions and restrictions for applicable to cities such as Rye, provide the protection, enhancement, perpetuation such justification. Under its provisions the and use ofU1Bplaces, districts, sites, build- sonable changes in the zoning regulation, { Planning Board is authorized to make rea- ings, structures, works of art, and other provided that the average density of the objects having a special character of special historical or aesthetic interest or value. land not be greater than is permitted in the district in which the land lies. Although Such regulations, special conditions and re- _ what the legislative body can authorize its strictions may include appropriate and rea- Planning Board to do, it can do itself by sonable control of the use or appearance of appropriate amendment of its zoning ordi- neighboring private property within public - Hance (sec, Cummings v. Town Bd., 62 view, or both. In any such instance such N'.Y.2d 833, 834, 477 N.Y.S.2d 607, 466 measures, if adopted in the exercise of the N.E.2d 147; Rodgers v. Village'of Tarry- police power, shall be reasonable and ap- town, 302 N.Y. 115, 123, 96 N.E.2d 731), propriate to the purpose, or if constituting the section contains nothing which indi- a taking of private property shall provide k cates an intention to do more than allow for due compensation, which may include deviation from fixed dimensional zoning the limitation or remission of taxes. Arti- upon application of the owner in order to cle 5-K is broader in scope,covering histor- accommodate group houses, apartment is preservation not only by regulation but houses or stores 4 Power to require devel- by governmental acquisition as well. Sec- opment of a 22-acre parcel in condominium tion 119-bb(4) defines "historic preserva- ownership cannot be implied from its provi- tion" to mean "for the purposes of this lions, therefore, any more than can it be article and notwithstanding any other pro- ' implied from General City Law § 20(24). vision of law, the study, designation, pro- tection, restoration, rehabilitation and use B of buildings, structures, districts, areas, [51 Authority to enact section 197-13.2 sites or objects significant in the history, of the Code of the City of Rye does not architecture, archeology or culture of this exist, therefore, unless it can be found in . state, its communities, or the nation." The the historical preservation provisions con- operative provisions of the article are con- also recognized in noncondominium cases(Vla- materia (see, Delaware Midland Corp. v. Incor- has Really Co. v. Little Boar's Head Dist., 101 porated Vil. of Westhampton Beach, 39 N.Y.2d V.H. 460, 146 A.2d 257; County of Fayette v. 1029,387 N.Y.S.2d 248,355 N.E.2d 302,affg on Cosseli;60 Pa.Commw.202,430 A.2d 1226; Fer- opn at Special Term 79 Misc.2d 438, 359 N.Y. ` nald's Appeal, 17 Pa D & C 2d 291; Olevson v. S.2d 944), the City's authority is not enhanced, Zoning Bd., 71 R.I.303,44 A.2d 720). for both speak to the "development of land in 1. The cluster provisions of the Town Law such a manner as to promote the most appropri. (§281)and the Village Law(§ 7-738)arc some- ate use of land". what more detailed, but even if read in pari �t. l I;,, 326 495 NEW YORK SUPPLEMENT, 2d SERIES 66 H.Y.2d 118 ,f tained in section 119—dd, which is set forth of the, Jay Mansion and the Carriage in full in the margin 5 House,proscribe the use of any new dwell- _U190f importance to the present issue is ing unit until that has been done, thus the fact that the regulation, special condi- effectively requiring that the cost of reha- "' tion or restriction by which section 119— bilitation be shared by owners in the dis- _.' dd(1) authorizes control of private property triet of units other than the Jay Mansion {` is "for the protection, enhancement,perpet- and the Carriage House, and by dictating uation and use of places, districts, sites, condominium ownership of the entire dis buildings, structures". Nothing in the sub- trict impose the cost of maintenance of the division speaks to regulation of ownership, exteriors of the Mansion and the Carriage '. Noteworthy also is the fact that though House upon owners of such units as well. F section 119—bb(4) refers to "restoration" The right to impose reasonable controls and"rehabilitation",those words are not to on the use and appearance of neighboring be found in section 119—dd(1), presumably private property within public view, given because it was intended to permit a munici- by General Municipal law §§ 96—a and .� pality acting under section 119—dd(3) after 119—dd(1),cannot be stretched to cover pay- acquisition of a fee or lesser interest to ment of restoration and maintenance costs, restore and rehabilitate historic buildings for such a construction, which would im- gA and sites, but not to permit the municipali- pose .those costs upon every unit in the ty to impose an obligation to restore or district,not just those"within public view," rehabilitate such buildings or sites as re- would render meaningless the limitation in- main in private ownership. Here the Code tended by those words which appear in sections creating the Alansten Landmarks both sections. Yet there is no question c Preservation District not only mandate that that such was the Council's intention, for y the entire 22-acre district remain in single its findings with respect to the final envi- ownership but also impose upon the devel- ronmental impact statement flatly stated oper the duty of rehabilitating the exteriors that "[o]nly under [condominium] awaer- S. The section, entitled"Local historic preserva- otherwise,acquire the fee or any lesser interest, tion programs,"reads as follows: development right,easement,covenant or other "In addition to existing powers and authori- contractual right necessary to achieve the pur. ties for local historic preservation programs in- poses of this article, to historical or cultural cluding existing powers and authorities to regu- property within its jurisdiction. After acquisi- late by planning or zoning laws and regulations tion of any such interest pursuant to this subdi or by local laws and regulations for preserva- vision,the effect of the acquisition on the valua- tion of historic landmarks and districts and use tion placed on any remaining private interest in of techniques including transfer of development such property for purposes of real estate taxa- rights, the legislative body of any county, city, tion shall be taken into account. town or village is hereby empowered to: "4. Designate, purchase, restore, operate, "1. Provide by regulations,special conditions lease and sell historic buildings or structures. and restrictions for the protection, enhance- Sales of such buildings and structures shall be menu, perpetuation and use of places, districts, upon, such terms and conditions as the local sites, buildings, structures, works of art and other objects having a special character or spe- legislative body deems appropriate to insure the vial historical, cultural or aesthetic interest or maintenance of the historic quality of the build- value. Such regulations,special conditions and ings and structures,after public notice is appro- restrictions may include appropriate and rea- priately given at least thirty days prior to the sonable control of the use or appearance of anticipated date of availability and shall be for neighboring private property within the public fair and adequate consideration of such build- view, or both. ings and structures which in no event shall be ? "2. Establish a landmark or historical preser- less than the expenses incurred by the munici- vation board of commission with such powers pality with respect to such buildings and sttuc- as are necessary to carry out all or any of the tures for acquisition, restoration, improvement authority possessed by the municipality for a and interest charges. historic preservation program,as the local legis- "5. Provide for transfer of development lative body deems appropriate. rights for purposes consistent with the purposes "3. After due notice and public hearing, by of this article." purchase, gift, grant, bequest, devise, lease or i; .. 66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327 Cite as 493 N.YS.2d 321 (CLApp. 1985) ship can the cost of maintaining the exteri- out violating the Constitution, nor need we x ors of the historic buildings be shared reach the question whether as applied to z 12oby all the homeowners", and that theme plaintiff's property section 197-13.2 is con- is repeatedly emphasized in the City's brief stitutional. We hold rather that in light of to this court. While that may be true, the well-recognized rule that statutes are clearer authorization to enact such provi- to be construed so as to avoid constitution- sions than are contained in the General al issues if such a construction is fairly t: Municipal Law sections referred to is es- possible (Matter of Peters v. New York sential before section 197-13.2 can be up- City Hous. Auth., 307 N.Y. 519, 527-528, held against the argument that it was be- 121 N.E.2d 529; see, People v. Felix, 58 yond the City's power to enact. N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 Noteworthy also, in view of the require- N.E.2d 757; McKinney's Cons.Laws of ment that the Mansion and Carriage House N.Y., Book 1, Statutes § 150), the General be completely restored before any other Municipal Law sections under consideration unit can be occupied is the absence from as presently written should be construed not to authorize imposition of restoration the General Municipal Law sections of au- thority to require restoration, as distinct from plaintiff or maintenance costs upon from maintenance. Landmark and historic preservation laws normally prevent altera- to be preserved.purchasers of properties other than those tion or demolition of existing structures ` unless the owner can demonstrate hardship C s (Penn Cent. Transp. Co. v. City of New York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d In view of the distinctions between zon- 914,366 N.E.2d 1271,affd. 438 U.S. 104, 98 1ng regulation, historic district regulation S.Ct. 2646, 57 L.Ed.2d 631), but if they and landmark regulation recognized in place an undue and uncompensated burden Penn_L21 Cent. Transp. Co. v. City of New on the individual owner may be held uncon- York, 42 N.Y.2d, at p. 330, supra, 397 stitutional (Lutheran Church in Am, v. N.Y.S.2d 914, 366 N.E.2d 1271, we note City of New York, 35 N.Y.2d 121, 129, 359 that chapter 117 of the Rye City Code deals N.Y.S.2d 7, 316 N.E.2d 305) because "it with landmarks preservation and is re- forces the owner to assume the cost of ferred to in section 197-13.2(C)(1). As providing a benefit to the public without chapter 117 read when the Alansten Pres- recoupment"(French Investing Co. v. City ervation District section was enacted, land- mark designation required the property N of New York, 39 N.Y.2d 587, 596, 385 N.Y. owner's consent, but effective December 7, 8.2d 5, 350 N.E.2d 381; see, Dunham, A 1983, chapter 117 was amended to remove Legal and Economic Basis For City Plan- ning, requirement 58 Colum.L.Rev. 650, 665). Here, q provide for 5 landmark designation by the City Council society at large bears no part of the cost of alone,s and .effective July 18, 1984, the restoration, it is rather to be borne initially Alansten 22-acre site and the exteriors of by plaintiff and ultimately by the purchas- the Jay Mansion and of the Carriage House ers of dwelling units within the district. were designated as protected. Nothing in Yet the City's expert appraiser agreed that that designation or in the provisions of restoration costs of approximately$627,000 chapter 117, which concern only mainte- for the Jay Mansion and $588,000 for the nance of a landmark and the circumstances Carriage House would be required. under which it can be demolished, provides We do not hold that the General Munici- support for the provisions of section 197- pal Law sections could not be drafted to 13.2 requiring that the Alansten property impose restoration costs on an owner with- be held in single ownership in condominium 6. On June 18, 1984, the Alansten 22-acre plot before Supreme Court,Westchester County,in a was so designated. The constitutionality of the declaratory judgment action entitled DGM Part- amended version of the chapter is awaiting trial hers-Rye t. city of Rye .a ' -aT� fS 1p 328 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N-Y.2d 121 f form or the imposition of restoration, as er to add request for reductions in unpro- distinct from maintenance, costs upon the tested assessments on improvements. property owner and ultimately upon pur- Affirmed. chasers of dwelling units within the dis- trict. Wachtler, C.J., filed dissenting opinion " in which Meyer and Kaye, JJ., concurred. For the foregoing reasons, the order of the Appellate Division declaring Rye City - Code § 197-13.2 invalid is affirmed, with Taxation e-493.70) costs. Court was without authority to grant t amendment to petitions alleging error in i WACHTLER, C.J., and JASEN, SI- assessed value of land only, based on pro- MONS, KAYE, ALEXANDER and TI- tests similarly limited, to permit taxpayer TONE, JJ., concur. to add request for reductions in unprotest ed assessments on improvements. Order affirmed, with costs. w �aAdolph Koeppel, Anne J. Del Casino O 51(EYNUNBERSYSTEM and Donald F. Leistman, Mineola, for ap- pellant. Edward G. McCabe, Co. Atty. (Joshua A. ; A: Elkin, Mineola, of counsel), for respon- dents. 1 485 N.E.2d 993 66 N.Y.2d 122 _,24OPINION OF THE COURT t ,,221n the Matter of STERLING SIMONS, Judge. 1 t; ESTATES, INC., Appellant, ' F� Petitioner is the owner of real property _ j � i V. in Valley Stream, New York, known as the` o z BOARD OF ASSESSORS OF the Green Acres Shopping Center. It has insti- m a s' COUNTY OF NASSAU et al., tuted several proceedings pursuant to Real J Respondents. Property Tax Law article 7 seeking a re- t r' duction in the land assessments on the sev- i: Court of Appeals of New York. eral parcels making up the shopping center .4 property for the tax years 1967/1968 n Oct. 24, 1985. through 1977/1978. In 1982 it moved to c, 4 amend the petitions requesting, along with B other relief, permission to allege error in N Taxpayer moved to amend petitions the assessed value of lots not previously F. filed in tax certiorari proceedings to in- protested and in the assessed value of im- ` pE crease amount of claimed reductions on provements on lots that had been protest. fi: basis that assessments were unequal, ex- ed. Special Term denied that relief, hold- cessive, or otherwise valid. The Supreme ing that it lacked jurisdiction to permit . so Court, Nassau County, Farley, J., denied amendment of the petitions to add a chal- inmotion, and taxpayer appealed. The Su- lenge to lot or improvement assessments ' pe preme Court, Appellate Division, 104 which had not been protested previously w; A.D.2d 599, 479 N.Y.S.2d 381, affirmed. during the statutory period for administra- su On appeal by permission of the Appellate tive review. The Appellate Division af- se. l Division, the Court of Appeals, Simons, J., firmed, with one judge dissenting (104 ta- F held that Court was without authority to A.D.2d 599, 479 N.Y.S.2d 381). On this bl, grant amendment to petitions alleging er- appeal petitioner presses only the court's in( ror in assessed value of land only,based on ruling denying amendment to add a chal- ha protests similarly limited,to permit taxpay- lenge to the assessed value of the improve- j pu _p +a. �y !pr1 r}�i E 4�,' ) I L • npV'}{y Z 7 A y :fF Yt'4+¢ j y2,('S ( itry . 1 ( -.r (f�' Y f3 s�RI.�.�� ' _ �J x� i�i�esd , t� ., s5i,��. x •agr a `.r<�1aYi'�Yr V,f� �s'4�%S%�13 s'�.y-� . ti ja'Nrfi n rr>�f5� a,. Pi'� t� a �`1 ia, 'x ,�,+;Yr .•x;, k : �.•- • TTt' 1 r SUMMIT SCHOOL v. NEUGENT 77 "SY1 _ Cite as,App.INv.,442 N.Y.S.2d 73y, ducted on the premises which are the sub- school, the details of the operation of the ject of the special permit (Matter of Com- educational processes of the institution,and munit Synagogue v. Bates 1 N.Y.2d 445 also equally improper and be and its power �• Y ..F Fq YY P l NAn 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter of to impose such conditions, as here, by an Schlosser v. Michaelis, 18 A.D.2d 940, 238 agreement with the applicant. . N.Y.S.2d 433; Matter of Oakwood Is. Yacht f Club v. Board of Appeals, 32 Misc.2d 677 [6] To the extent that appellants may 221 N.Y.S.2d 907; Matter of Long Is.Light be properly precluded by a prior waiver of a = r statutory or constitutional right to chal- Co. v. Voehl, 27 Misc.2d 943, 211 N.Y.S.2d a 576 affd. 15 A.D.2d 512 222 N.Y.S.2d 589r lenge the official action of the municipality Matter of De Ville Homes v: Michaelis, inrelation to zoning,such waiver is ineffec- Sup., 201 N.Y.S.2d 129; Bernstein v. Board tual to foreclose such attack" where the right concerns a matter of public policy(see al ,of Appeals, Vil. of Matinecock, 60 Misc.2d i ! 470,302 N.Y.S.2d 141, app.dsmd. 31 A.D.2d Brous v. Town of Hempstead, 272 App.Div. 650, 297 N.Y.S.2d 702, mot. for Iv. to app. 31 69 N.Y.S.2d 258). den. 23 N.Y.2d 646, 299 N:Y.S.2d 1025, 247 By their agreement, the appellants have g N.E.2d 498). effectively waived all objections to the Where, as here, the special permit con- conditions subsequent",except those under . �. tains specific conditions which have been which the municipality sought to assumer' . control over some aspects of the educational �.r the subject matter of an agreement be- , an e process of the school, for which it tween the Board of Appeals and the appli- cant, such conditions must also pertain ex- e.o unwas neither professionally equipped nor le- Bally authorized tdertak 1. elusively to the zoning use of the land and not to the details of the operation of the [7] Those "conditions subsequent" s� + business to be thereon conducted, which, in which may intrude upon the educational ) this case, concerns the teaching of Nandi- processes of the appellants, as opposed to - -•:>� ;,��„�., 3, capped children with learning disabilities, their use of real property, are contrary to pursuant to a constitutional mandate im- public policy and may not be the subject posed upon the State to "provide for the matter of a waiver. maintenance and support of.a system of Our inquiry is now focused upon many free common schools, wherein all the chil- clauses of the "conditions subsequent" des- dren of this state may be educated." (N.Y. ignated "D",' which for the reasons herein- �\ Const., art. XI, § 1; emphasis added.), _--E; below stated, suffer such infirmity. It is « `: '- [5] We are dealing here with a private there provided as follows: school teaching enterprise; authorized and "D. Students will be under 18 years of , operated under contract to carry out the age and will be limited to those with State's obligation to provide education for so-called `Learning Disabilities'; regular such handicapped children with learning educational classes will be held during the disabilities_ ursuant to article 89 : P (§§4401— months of September through June, in- ' 4409) of the Education Law, and it would elusive on Mondays through Fridays, in- not only be contrary to "the strong public elusive, from approximately 9:00 A.M. to k k^ r policy of the State which favors the educa- approximately 4:00 P.M.; any athletic or tion of all children, however handicapped" recreational activities shall be of second- (Rogers v.Association for Help of Retarded ary importance and will be held either Children,308 N.Y. 126, 132, 123 N.E.2d 806, indoors, or sufficiently distant from the '} emphasis added; Matter of Wiltwyck north and south boundaries of the proper- <.- 1 • School for Boys v. Hill, 11 N-Y.2d 182, 227 ty, both, to the end that neighboring . N.Y.S.2d 655, 182 N.E.2d 268, supra), and owners will not, be disturbed by loud , ..,. i in excess of the legislative power conferred noise or otherwise; no summer camp or upon a municipality, to impose, as a condi- vacation activities of any kind will be tion of a special use "., Pe ' permit for a private held or maintained at any time on the 3� 2 K�•' nt•f.' f S P.O.K.•RSA, INC. vi VILLAGE OF NEW PALTZ 479 Cite m 333 N.Y.8.2d 476(AM.3 Dept. 199a) tecutive Law §§ 370—. plied) (Executive.Law former .§ 383, re- .fies.as multifamily, dwellings, into condo- . Multiple Residence pealed by;Lf1981,ch. 707, § 12).. . miniums;also considered multifamily dwell- certificates of occu- The certificates of occupancy issued in con- ings, it goes beyond the Village's enabling tesidence Law § 302), nection with plaintiff's,apartment complex authorization and therefore the local law is unicipalities to enact from.1963.to 1969 proclaim that the build- ultra vires and void (see, FGL & L Prop. i laws (Multiple Resi- ings conformed].to, all of:the require- Corp, v. City of Rye, supra, 66 N.Y.2d at ments.,of:the,.applicable provisions of.the 115„ 495.N.Y.S.2d 321, 485 N.E.2d 986• the third cause of ac- law" existing as of the date of issuance .,North Fork Motel v. .Grigonis, supra)... _ is predicate that the (see, 4'Rathkopf; The Law of Zoning and a ;; the power to enact Planning § 49.07,` at• 49-41).,- Local Law : :;:MAHONEY, P.J., and MERCURE, J., cause it contravenes -No. 21 does not detract'from that assur- concur.:, ultiple Dwelling Law ance, for it requires the building inspector sidence Law § 362(5) 'to detettnine if the structure meets current KANE,J., concurs in part and ,rmer § 383. Undeni- building'construction-laws. Although the dissents in part in an opinion. A establish local laws already-promulgated certificates attest that Order modified, on the law, without ie State Constitution the'complex met,building•code regulations costs, by reversing so much thereof as r , defined as laws extant at the time they.were issued, there denied plaintiffs motion for summary judg- o all villages (N.Y. is no guarantee that they meet today's ment• plaintiff 3 c standards P granted summary judgment . ][ ], [d][1]; Munici- (see,iii:,.at 49�8)._ For example, on its first cause of action and defendant's w § 10[l][ii][a][12]), the New York Building Code was repealed Local Law cNo.ause 21 declared ultra defendant's and ue, however, is not effective January 1, •1984, and replaced by 'void; and, as so modified, affirmed. of these three stat the.current'New York Uniform Fire Pre- vention and Building Code Act, which be- came effective July 21, 1981 (L.1981, ch. KANE, Justice (concurring in part and Dwelling Law and 707, §§`12, 20): Local Law No. 21's re- dissenting in part). tw adverted to pro- quirementi'that' plaintiff's buildings now In respectfully dissenting, I'note my con- •n an individual pur- meet current building and fire regulations currence with the majority's reasoning as !lling relies on a pre- does not offend the Executive Law former to the merits of plaintiffs second and third tte of occupancy, no § 383 guarantee, causes of action.. In my view,however,the be advanced that the " r 9 .r'r ,_• ` ' ' ordinance is a le 'ti C5] There is,however,merit to the com- gl 'mate exercise of the rm to the provisions "plaintinsofar'as the,first cause of action is Village's police power and I would, there- pters of those laws concerned;for as plaintiff rightly sttggeats fore, affirm Supreme Court's dismissal of f the certificate (see, the Village does not have the legislative Plaintiff's first and second causes of action. v § 301[5]; Multiple power to regulate'the'convei'sion of proper- "To be sure, a.Village ordinance enacted 51). These sections ''` ty.ownership 'which does not involve an under the police power must bear a reason- the dwelling was not alteration in the owner's use of the proper- able connection to the'public health, com- iose laws.when the •ty. Municipalities have no inherent capaci- fort, safety and welfare" (D'Angelo v. d; Local Law No. 21 ty to mandate'the manner in which proper- Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900, contrary. ty may be owned or held (FGL &L Prop. 490 N.E.2d 819; see, Village Law local law contradict Corp.'v.-City 1of Rye, 66 N.Y.2d 111, 113, § 4-412[l]). I agree.with the majority 495 N.Y.S.2d.321; 485 N.E.2d 986). They that, absent a delegation of power, a vil- § 383. That statute must acquire 'such power from the State. lage may not mandate the manner in which -Absent such a delegation of power, a mu- . property may be owned (see, FGL & L icate of occupancy + '.'nicipality cannot employ a zoning ordinance Prop. Corp. v. City of Rye, 66 N.Y.2d 111, I set aside or vacat- i to exclude or discriminate against the con- 113, 495 N.Y.S.2d 321, 485 N.E.2d 986). -eview or a court of dominium form•of ownership (North Fork However,the clear legislative target of the )n, be and remain Motel v. Grigonis, 93 A.D.2d 883, 461 N.Y. ordinance at issue here is the condition of -e upon all state and S2d 414):"'As•Local Law No.21 encumbers the ro e P p rty at the time of conversion, not as to all matters sponsors' efforts to convert, apartments, its form of ownership. The encumbrance l no order, direction which,the Village zoning ordinance classi- directed at conversion is, in my view, inci- variance therewith sued by any other "' The certif3cite3 of occupancy issued io plaintiff Executive Law provision was repealed effective in 1986, 1987 and 1988 are irrelevant for the in 1984 (L.1981, ch. 707, §§ 12, 20). .ency(emphasis sup- I purposes of this argument for the applicable t ATTORNEY AT LA 828 FRONT STREET;P.O.BOX 803 GREENPORT,NY 11944 J {� 1 1 ` -'r L J � I (516)477-1016 January 8, 1.991 Southold Town Board of Appeals Southold Town Hall Main Road Southold, New York 11971 RE: APPLICATION OF MICHAEL CHOLOWSKY Gentlemen: Enclosed herewith please find Memorandum of Law with regard to the subject application. If you have any questions, please feel free to cont ..t me. Very tru J. in 'sic ughl •n JKM/lmt enclosure HAND DELIVER APPLICATION OF MICHAEL CHOLOWSKY, TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW f� TOWN OF SOUTHOLD FACTS This is an application to the Southold Town Zoning Board of Appeals for a variance to the Southold Town Zoning Ordinance, Article III, Section 100-31B(7) (c) concerning the proposed establishment, 11 construction and operation of a golf driving range, a miniature golf course and building with office accessory and incidental thereto . The subject premises is known as 3340 Horton ' s Lane, Southold, New ' York, i bears County Tax Map Parcel I .D . No . 1000-55-1-9 and contains 16 . 7t _ acres . Said property is owned by Lorinda C . Casola and the applicant is the holder of a long-term lease thereon with an option to purchase . Applicant has applied to the Southold Town Building Department for a building permit, but a Notice of Disapproval has been issued, stating that the applicant requires both a special exception -and a variance . Section. 100-31B(7) (c) states that any of the special exception clubs and uses allowed within said Section " . . . shall n-ot be conducted for profit as a business enterprise . " It is the applicant' s contention that 'the purported limitation of such special exception uses to not-for-profit enterprises is clearly illegal and that a variance should be granted allowing the applicant to conduct such a use as a business enterprise for profit . o ! i i LEGAL ARGUMENT Article 16 of the Town Law regulates zoning and planning by ,- the various towns within the State of New York . Section 261 thereof ii establishes the power granted to the towns by the State of- New York and reads as follows : l For the purpose of promoting the health, safety, morals, or the general welfare of the community, ! the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and- size of buildings and other structures, the I percentage of lot that may be occupied, the size of ! yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, j residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any I! incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that part of the town outside of any incorporated village or city . The town board is hereby authorized and empowered to make such appropriation as . it may see fit for such charges and expenses, provided however, that such appropriation shall be the estimated charges and expenses less fees , if any, collected, and provided, that the amount so appropriated shall be assessed, levied and collected from the property outside of any incorporated village or city . Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained . Nowhere in said section is there any grant of power to regulate the form of ownership of property within the context of the . zoning and planning authority of a town . In fact, cases are legion i Ii I. I 4 I i I i = �i that such a power to regulate the form of ownership does .,'not and cannot 'I exist . Indeed, it is a fundamental rule that zoning deals basically i - ;i with land use and not with the person who owns or occupies it . (See Matter of Dexter V . Town Board, 36 N .Y. 2d 102, 105, 365, N . Y. S 2d 506, • 324 N . E. 2d 870; accord, Matter of Weinrib V . Wiesler, 27 N .Y. 2d 592, it 313 N .Y. S . 2d 407, 261 N . E . 2d 406, gfJ-:g 33 A . D . 2d 923, 307 N . Y. S . 2d 603; Allen V . Town of North Hempstead, 103 A . D . 2d 144, 146, 478, N .Y. S . 2d 919; North Fork Motel V . Grigonis, 93 A. D . 2d 883, 461 N . Y. S . ij 2d 414; 5-aa, Matter of Park W . Vil Assoc . V . Abrams, 65, N . Y. 2d 716, �I 492 N .Y. S . 2d 27, 481 N . E . 2d 567) . Annexed hereto are copies of the I !� North Fork Motel V . Grigonis and FGL&L Property Corp . V . City of Rye decisions , `i It is absolutely clear and certain from the foregoing cases that the attempt in Section 100-31B(7) (c) of the Zoning Code to restrict the allowable special exception uses to not-for-profit entities is a legal nullity . As expressed in all of those cases, it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulations . The decisions of all levels of courts in this State, including the Court of Appeals (the highest level court in this State) are uniform in holding that a zoning ordinance may t not regulate the form of ownership of property, as distinguished from regulating the use of said property . k f` ;I �I CONCLUSION !I The Southold Town Zoning Board of Appeals should grant the �i 1 requested variance to allow the applicant to establish, construct and operate a golf driving range, miniature golf course and building with accessory office thereto under any form of ownership, including a j business enterprise for profit, which said applicant deems appropriate . ; Respectfully submitted, I J . KEVIN MCLAUGHLIN Attorney for Applicant, Michael Cholowsky 828 Front Street, PO Box 803 !; Greenport, New York 11944 - (516 )477-1016 'I 414 461 NEW YORK SUPPLEMENT, 2d SERIES f: Wickham, Wickham & Bressler, P.C., ;; .:. . .. Smith, Mattituck (Eric J. Bressler, Mattituck, of 93 A.D.2d 883 & Yakab: counsel), for appellant. NORTH FORK MOTEL, INC., Riverhead c' Respondent, Esseks Posner & Posner, Mount Vernon (Linda S.Jamieson,Mount Vernon,of counsel),for V. head (St( William Sirignano, receiver-respondent. ' ::. counsel), i Charles GRIGONIS,Jr.,et al.,constituting as Before GIBBONS, J.P., and GULOTTA, the Zoning Board of Appeals of the; Before O'CONNOR and NIEHOFF, JJ. -. Town of Southold et.al, Appellants. gRACKE " MEMORANDUM BY THE COURT. S Ct, Appellate Division, Supreme our MEMO. In an action, inter alia, for a declaratory Second Department. In a CI judgment to determine the ownership of a April 25,'1983. peal is fr publishing house, defendant appeals from Court,Su r �:.. . an order of the Supreme Court, Westches- ;� ter County, entered September 9, 1982, which an: which, upon the respondent receiver's mo- Town zoning board of appeals appealed inspectors ' tion to punish him for contempt of a prior from a judgment of the Supreme Court, Hinderma : P December order of the same court, adjudged him in Suffolk County, Gerard, J., which annulled contempt and permitted him to purge him- determinations of building inspectors and a terminate, self thereof by, inter alia, rendering an determination of the zoning board of ap- of the T: 1-`: 1981, whi account. peals which denied applications for permis- . for permi Order reversed,without costs or disburse- sion to change .the form of ownership of . .. P ments,and matter remitted to Special Term certain premises.. The Supreme Court,Ap .: ershi of for further proceedings consistent herewith. pellate Division, held that special term cor- `:. Juiigmc ss. [1,2] The record before this court fails rectly concluded that the conversion of bursemen to indicate whether defendant was ad- ownership of the subject property from a F, : -I[1,..2] judged guilty P corporate form to a condominium form was. ... `? ;:•. ud ed of civil or criminal contempt, Pployed b3 and at the hearing which must be conduct- not violative of the town zoning ordinance. miniums {� ed, the course being pursued must be made provided the property's use as a motel re- minium i clear. Adjudging defendant to be in crime- mained unchanged. rather th 7. nal contempt is not warranted on this rec- Affirmed. proper a ord, as there is no finding that the alleged planning disobedience of the prior order of the court Maplewo( Y was willful,and similarly an adjudication of wood Vil. ,.� 1. Zoning and Planning e—72 � � �i.;:: '., civil contempt is not warranted because Bridge F there is no finding that defendant's actions Zoning ordinances cannot be employed } ; . pork, 11: C were calculated to or actually did defeat, by a municipality to exclude condominiums Nor does impair or prejudice the rights and remedies or discriminate against condominium form. ownershil of the plaintiff(see Matter of Ross v. Sher- of ownership, for it is use rather than form valid exi: wood Diversified Servs., 88 A.D.2d 936,450 of ownership that is proper concern and 5`''i of.ifiami N.Y.S.2d 872). focus of zoning and planning regulations minium t `;. McKinne 's Town Law § 261. r`.". Court A� Also,defendant denied that he had failed Y to turn over any assets of Queens House,as . ti .. Chapel I was alleged by the receiver. Questions of 2. Zoning and Planning76 418). Ac Special term correct] concluded that �" fact were raised on that and other issues P Y conclude( ?' that could not be resolved without a hear- conversion of ownership of property from of the si ing(see Crisona v. Eastern Props. Improve- corporate form to condominium form was form to a t+: men Corp., 27.A.D.2d 717, 717-718, 277 not violative of town zoning ordinance pro- of the z• N.Y.S.2d 477; Kamen v. Kamen, 13 A.D.2d vided property's use as a motel remained n=.: ,? Southold, r.•. 985, 216 N.Y.S.2d 715). unchanged. McKinney's Town Law § 261 r.;. . use as a v�. MEDARIS v. VOSBURGH 415 Cite as 461 N.YS.2d 415(A.D.2 Dept.. 1993) Smith, Finkelstein, Lundberg, Crimmins & Yakaboski, Riverhead (Frank A. Isler, 93 A.D.2d 882 Riverhead, of counsel), for appellants. Virginia C. MEDARIS, Respondent, Esseks, Hefter, Cuddy & Angel, River v,. head (Stephen R. Angel, Riverhead, of Lee Frederick VOSBURGH, et counsel), for respondent. <tuting al., Defendants, . of the Lzfore MANGANO, J.P., and GIBBONS, llants• BRACKEN and NIEHOFF, JJ. Bruce Robert Heinzen et al., Appellants. )n' MEMORANDUM BY THE COURT. Supreme Court, Appellate Division, Second Department. In a CPLR article 78 proceeding, the ap- peal is from a judgment of the Supreme April 25, 1983. Court,Suffolk County,entered July 1, 1982, which annulled determinations of building 1ealed inspectors George H. Fisher and Edward F. In medical malpractice action to recov- ,ourt, liinderman, dated February 13, 1980 and er damages for personal injuries, plaintiff gulled December 22, 1980, respectively, and a de- refused:to answer certain interrogatories ind a termination of the Zoning Board of Appeals propounded by defendant. The Supreme ap- of the Town of Southold, dated June 25, Court,Suffolk County,McCarthy,J.,denied rmis- 1981, which denied petitimieer's applications defendant's motion to compel answers to for•permission to change the form of own- 5 T of interrogatories, and defendant appealed. ership AP- of certain premises. The Supreme Court, Appellate Division, cor- Judgment affirmed, without costs or dis- held that trial court erred in denying de- of bursements. fendant's motion to compel on basis that. r: in a interrogatories did not ask for facts but for [l,2] Zoning ordinances cannot be em- was Opi nions and amplifications of allegations of ployed by a municipality to exclude condo- tnce miniums or discriminate against the condo- negligence, especially where plaintiff had re- failed to make timely motion to strike chal- minium form of ownership, for it is use y .. rather than form of ownership that is the lenged interrogatories. concern and focus of zoning and proper g Order reversed; motion to compel an- planning regulations(see Town Law,§ 261 savers granted. _ Maplewood Vil. Tenants Assn. v Maple- wood ViL,116 N.J.Super.372,282 A.2d 428; " Bridge Park Co. v. Borough of Highland yed _ 1. Pretrial Procedure �+284, 305 .Park, 113 N.J.Super. 219, 273 A.2d 397). :cos Nor does the mere change in the type of In medical malpractice action, trial >�•:=•; +rm P court erred in denying }" ownership result in the destruction of a yi g defendants motion rm valid existing nonconforming use see City to compel plaintiff to answer interrogato- of,tifiami Beach v. Arlen King Cole Condo- ries on basis that such interrogatories did ns. minium Assn.,302 So.2d 777[Fla.); Graham not ask for facts but for opinions and am li- r i Court Assoc. v. Town Council of Town of fications of allegations-of negligence, espe- E - Chapel Hill, 53 N.C.App. 543, 281 S.E.2d cially where plaintiff had failed to make ��: ., 418). Accordingly, Special Term correctly timely motion to strike challenged interrog- at concluded that the conversion of ownership atones. McKinney's CPLR 3101(a), 3124, r to of the subject property from a corporate 3131, 3133(a). as form to a condominium form is not violative �... �- of the zoning ordinance of the Town of 2• Pretrial Procedure 0-242 er « Southold, provided the property's present Purpose of interrogatories is distinct lei 1. we as a motel remains unchanged. from that of bill of particulars; while inter- +" E r •ir - 1 ,l J�, FGL & L PROPERTY CORP. v. CITY OF RYE 333 Cite as 486 N.Y.S.2d 333 (A.D.2 Dept. 1985) N.Y.2d 942, 298 N.Y.S.2d 724, 246 N.E.2d miniums, was invalid, since it constituted 527). improper regulation of form of ownership t of property. O SHEYHU.......... 3. Zoning and Planning c�61 T Municipality does not have power to regulate manner of ownership of legal es- tate,as it is use rather than form of owner- 109 A.D.2d 814 ship that is proper concern and focus of FGL & L PROPERTY CORP., zoning and planning regulations. - Appellant-Respondent, V. Weil, Gotshal & Manges, New York City The CITY OF RYE, et al., (Peter Gruenberger, Lesley E. Goldberg Respondents-Appellants. and Robbie Narcisse, New York City, of Supreme Court, Appellate Division, counsel), and Berger, Steingut, Weiner, Second Department. Fox & Stern, New York City (Theodore S. Steingut, New York City, of counsel), for March 18, 1985. appellant-respondent (one brief filed). Richard M. Gardella, Corp. Counsel, Rye, Action was brought seeking to have for respondents-appellants. declared unconstitutional an ordinance Meighan & Necarsulmer, Mamaroneck which purported to create new zoning dis- (Garrison R. Corwin, Jr., Mamaronick, of trict, applicable only to one person's 22— counsel), for friends of Marshlands, Inc. acre lot, and which directed that purported and Federated Conservationists of West- -- district be maintained in single ownership chester County, Inc., amici curiae. and that any development of property be Before LAZER, J.P., and MANGANO, limited to residential-condominiums. The BRACKEN and NIEHOFF, JJ. Supreme Court, Westchester County, John C. Marbach, J., denied injunctive relief MEMORANDUM BY THE COURT. against enforcement of ordinance pending In an action, inter alia, for a judgment hearing to determine if ordinance was con- declaring Rye City Code § 197-13.2 invalid fiscatory, and appeal was brought. The and'unconstitutional, plaintiff appeals, as Supreme Court, Appellate Division, held limited by its brief, from so much of an that ordinance was invalid since it consti- order of the Supreme Court, Westchester tuted improper regulation of form of own- ership of property. County, entered March 5, 1984, as denied injunctive relief against the enforcement of Reversed. that section of the city code pending a hearing to determine if said section was 1. Zoning and Planning cal confiscatory with respect to plaintiff's Zoning is concerned with use of land, property, and defendants cross-appeal from and not with person who owns or occupies so much of the same order as denied their f motion for summary judgment declaring it. said section of the city code valid. 2. Zoning and Planning ca61 Order reversed insofar as appealed from, Ordinance which purported to create on the law, with costs, the second and third new zoning district, applicable only to one decretal paragraphs thereof are deleted, person's 22—acre let, and which directed and it is declared that Rye City Code that purported district be maintained in § 197-13.2 is invalid as it constitutes an single ownership and that any development improper regulation of the form of owner- of property be limited to residential condo- ship of property. 334 486 NEW YORK SUPPLEMENT, 2d. SERIES The ordinance in question purports to In light of our determination, we do not create a new zoning district,applicable only reach the other issues. to plaintiff's 22-acre lot. The ordinance further directs, among many other things, w that the purported district must be main- tained in single ownership,and further pro- vides that any development of the property, 109 A.D.2d 815 r ,which is severely restricted, be limited to FIRE ISLAND PINES, INC., ` residential condominiums. Respondent,. l' [11 As a fundamental principle, zoning V. is concerned with the use of the land, and COLONIAL DORMER not with the person who.owns or occupies CORP., Appellant. it (see, e.g., Matter of Dexter v. Town Bd. of Town of Gates, 36 N.Y.2d 102, 105, 365 Supreme Court, Appellate Division, N.Y.S.2d 506, 324 N.E.2d 870; Matter of Second Department. Weinrib v. Weisler, 33 A.D.2d 923, 307 fY N.Y.S.2d 603, affd. 27 N.Y.2d 592,313 N.Y. March 18, 1985. l`+ S.2d 407, 261 N.E.2d 406; North Fork Mo- Default judgment was entered against n.ts tel v. Grigonis, 93 A.D.2d 883, 461 N.Y. YF S.2d 414; Allen v. Town of North Hemp- roofing company in action for damages al- legedly resulting from defective work. 1:... stead, 103 A.D.2d 144, 478 N.Y.S.2d 919)• The Supreme Court, Nassau County, John { ,1 [2,31 The instant ordinance, which pur- W. Burke,J.,denied roofing company's mo- +` ports to direct how the property may be Su- held to the exclusion of all other forms of tion to vacate, and it appealed. The Su- ellate Division, held that ownership, must fail because, as a general Preme Court, Appellate ' where complaint was properly forwarded to principle, a municipality does not have the power to regulate the manner of ownership insurer, which neither filed an answer nor V. of a legal estate, as "it is use rather than denied coverage,roofing company was enti- N form of ownership that is the proper con- tled to have resulting unintentional default ai cern and focus of zoning and planning reg- judgment vacated, particularly in light o ulations (North Fork Motel a Grigonis, evidence of meritorious defense, and ab- f<.•. supra; see also McHenry State Bank v. sent claim of prejudice by opposing party. ' City of McHenry, 113 Ill.App.3d 82, 68 Order reversed; motion to vacate Ill.Dec.615,618,446 N.E.2d 521, 524; CHR granted. Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E.2d 788, 791; Bridge Park Co. Judgment a143(3) v. Borough of Highland Park, 113 N.J.Su- Where insured roofing company for- per. 219, 273 A.2d 397, 399; County of warded complaint alleging defective work Fayette v. Cossell, 60 Pa.Cmwlth. 202, 430 to its insurer through broker, broker as- A.2d 1226, 1228; Graham Ct. Assoc. v. sured roofer that insurer would provide R� Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer N.C.App. 543, 281 S.E.2d 418). Although nor disclaimed coverage, roofer was enti- K; in the majority of the above cases the gen- tled to have resulting unintentional default i eral principle was invoked to prevent a judgment vacated, particularly in light of s municipality from excluding the condomin- affidavits demonstrating meritorious de- ium form of ownership, and here the in- fense, and absent claim of prejudice by x stant ordinance permits that form of own- opposing party. ership to the exclusion of all others, the result is the same. The city here has at- tempted to dictate how property may be Jay Berliner, Massapequa, for appellant. owned, and that is exactly what it is not Harold F. .Damm, Mineola, for respon- authorized to do. dent. 66 N.Y.2d 111 FGL & L PROPERTY CORP. v. CITY OF RYE 321 '.2d 108 Cite as 495 N.Y.S.2d 321 (CtAPP- 1985) (61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 485 N.E.2d 986 n there- i N.E.2d 15[absent exercise of discretion by 66 N.Y.2d 111 1t Id any i the Appellate Division so egregious as to �1FGL & L PROPERTY t to an abuse of discretion as a mad ce due amount� CORP., Respondent, - sums," ter of law, its exercise of discretion is not V. he tem- reviewable by us]D. The factors listed by - ellanta. •") and + the Appellate Division as the basis for its CITY OF RYE et al., App periods reduction of the award to 25% make clear Court of Appeals of New York- n. The that there was no abuse of discretion as a ,�r sup•e Appellate Di- Oct. 24, 1985. matter o +ich de- f law. Nor was the to ; vision required by Domestic Relations Law § 236(B)(5)(g) to analyze each of the Property owner brought action seeking section factors stated in subdivision(5)(d) and giVe an injunction against enforcement of local mainte- zoning law. The Supreme Court, Special :", both reasons as to each,it being sufficient under Marbach, J., subdivision (5)(g) that it "set forth the Term, Westchester County, han re- factors it considered and the reasons for its held the ordinance valid, and appeal was )pellate decision" (Kobylack V. Kobylack, 62 taken. The Supreme Court,Appellate Divi- s lump N y,2d 399, 403, 477 N.Y.S.2d 109, 465 sion, 109 A.D.2d 814, 486 N.Y.S.2d 333, e main- N.E.2d 829). reversed, and appeal was taken. The Nations r arguments are ei- hurt of Appeals,Meyer,J.,held that noth- Plaintiff s remaining argu rovisions of Gener- laintiff ther not before us on this appeal, unpre- ing in zoning enabling p aerved or without merit. al City Law, historical preservation provi- �e stat- sions of General Municipal Law no land- . award [9] On plaintiff's appeal, the order of marks preservation provision of city code distri' the Appellate Division should be affirmed, empowered'city'to mandate the manner in gins no without costs. Defendant's cross appeal which property may be owned or held or to 1 in lieu should be dismissed for want of aggrieve- impose upon the owner of a tract contain- of the ment, the modification made by the Appel- ing historic structures, or purchasers of A.D.2d properties neighboring the tract, the cost late Division having been in his favor. ssed 63 of rehabilitation or enhancement of the N.E.2dproperties. .Y.S.2d MONS, K Y,E�AL,E�DER and TI- Affirmed. he con- TONE, KA , JJ. concur in Per Curiam opinion. li,osum TONE, , and of On review of submissions pursuant to 1- Zoning and Planning e-232 I to be _ section 500.4 of the Rules of the Court of Zoning laws are to be given strict cor-- ,ssened Appeals (22 NYCRR 500.4): on plaintiffs struction because they are in derogation of thout costs. De- common-law rights. ►ge—in appeal, order affirmed, wi enance fendant's cross appeal dismissed, without -21 future. costs, 2. Zoning and Planning c° There being no inherent power to enact +pellate zoning or land use regulation, an ordinance award or local law provision for which legislative ly if it �Wisw delegation of power cannot be found is cretion oeuNaie sys1EM ultra vires and void. r Pro- r rod. 3. Zoning and Planning e-5 -dfo�0, 45�3 Power to adopt zoning provisions not pellate expressly forbidden by enabling authoriza- le trial tion may be implied where there exists independent justification for provisions tape of r to be within the spirit of the enabling legislation. ruska,t r 322 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 111 N.Y.2d 115 4. Zoning and Planning a61, 63 impose upon the owner of a tract contain- which in save Neither enabling provision for resi- ing historic structures, or purchasers of injunction ag dential zoning in cities, McKinney"s Gener. properties neighboring the tract, the cost Lion, a decla. al City Law § 20, subd. 24, nor section of rehabilitation or enhancement of the ultra vires, i containing cluster zoning authorization ap- properties. The order of the Appellate Di- spot zoning plicable to city, McKinney's General City vision should, therefore, be affirmed, with } well-consider, Law § 37, empowered city to enact zoning costs. t damages and law requiring, inter alia, that lot containing ants moved f two historic buildings have a minimum I ing the local area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of i wise dismiss not contain more than three and six units,_ land situated in the City of Rye (City) of cross-moved - i respectively, and that owner or purchasers approximately 22 acres on which are locat in its favor. ! of properties neighboring tract supply cost ed the Jay Mansion;built in 1838.•by Peter ! there were is 3 of rehabilitation or enhancement .of the; Jay,son of John Jay,the first Chief Justice ality requirin properties. of the United States Supreme Court, and as a hybrid 5. Zoning and Planning a61 another building known as the Carriage zoning and hi Neither historical preservation provi- House, built around 1912 in the Colonial f' was not inva. sions in section of General Municipal Law, Revival style. There is some dispute be- i, ing and had McKinney's General Municipal Law§ 96—a, tween the parties concerning the historic or t. accordance K nor landmarks preservation provision of landmark significance of the Carriage plan,and thw House, but for purposes of this opinion we not lie with .r city code authorized city to enact zoning Defendants' I law mandating that entire 22—acre district assume that both buildings have such sig- nificance. It is unnecessary to detail the was, therefc remain in single ownership with developer arY demonstratec negotiations carried on from 1979 until to rehabilitate exteriors of two historici buildings, and proscribing use of any new 1983 between the City and plaintiff's prede- I section preve nomic benef it dwelling unit until that rehabilitation had cessor in title and between the City and i. I been accomplished, thereby effectively re- plaintiff, and the various rezoning propos• � cross motion als that were made during those negotia- ed to the Ap quiring that cost of rehabilitation be shared I its brief, frot by owners in district of units other than tions, although a few pertinent and uncon- buildings in question. tested facts developed during those negou- i as to the sec ations are referred to below. fendants apl. When acquired by plaintiff's predecessor order as dire( Henry J.Smith and James G.Fine,White the roe g and denied I Plains fora appellants. property rty was zoned R-2 as were nei h the section pp boring properties, some of which were Appellate D: _LL12Peter Gruenberger, Lesley E. Gold- used, however, for public purposes or of- N.Y.S.2d 338 berg, Robbie Narcisse and Theodore S. fice use under nonconforming uses. R-2 } ferred only Steingut, New York City, for respondent. zoning permits single-family detached section, rave homes on not less than one-half-acre plots, jj _L130PINION OF THE COURT and plaintiff's property would have accotn• t invalid as it latimodated 38 such dwellings. In June 1983, ty." of the MEYER, Judge. the City Council adopted Local Law No. 33 (We A. Nothingin the zoning enabling 333.) We of g g provi- 5-1983,which added a new section 197-13.2 f consider the sions of the General City Law, the histori- to the City Code creating the Alansten the zoning et cal preservation provisions of the General Landmarks Preservation District (LPD-A). g in the ts ac Municipal Law or the Landmarks Preserva- As the revised zoning map demonstrates, late the City ityown ac tion provisions of the Rye City Code em- and defendants do not deny, the only prop- sh powers the City to mandate the manner in erty zoned LPD=A was plaintiff's 22 acres. ing of the Gener which property may be owned or held or to Plaintiff then began the present action, marks Gener Prest 1. Title has apparently been transferred back to not moot the appeal(Pacific Blvd.Assoc. v.City Code, upon the predecessor by plaintiff, but the fact that of Long Beach, 38 N.Y.2d 766,381 N.Y.S.2d 55, whether con there has been no substitution of parties does 343 N.1s 2d 772). junction.Wit 1 I .. 66 NXId 115 FGL & L PROPERTY CORP, V. CI`PY OF RYE 323 ' Cite as 495 N.Y.S.2d 321,(CLApp. 1985) I which in seven causes of action sought an sions of the General City Law, empowered injunction against enforcement of the sec- the City to enact the section in its present r tion, a declaration that 114it is invalid as form. We, therefore, affirm. ultra vires, unconstitutional, site specific, sspot zoning and not in accordance with a II well-considered zoning plan, and money The section as enacted declares that in z damages under 42 U.S.C. § 1983. Defend- order to provide for flexibility in the City's Y ants moved for summary judgment declar- zoning "so that the significant historic ing the local law constitutional and other- buildings, the Jay Mansion and the Car- wise dismissing the complaint. Plaintiff riage House, and site features which char- cross-moved for partial summary judgment acterize this site ' ' ' are preserved for in its favor. Supreme Court held that the future and that new construction be there were issues concerning constitution- undertaken with care and consideration for ality requiring trial, but that the ordinance, these features and the environment", the as a hybrid containing elements of both new district is adopted. Subdivision es- ' zoning and historic preservation regulation, tablishes standards for the new district, was not invalid as site-specific or spot-zon- which include that "[t]he lot as approved ing and had not been shown not to be in shall have a minimum area of twenty-two accordance with the City's comprehensive (22) acres and shall be and 115remain in plan,and that the section 1983 action would single ownership"; that "[t]he exterior of �^ not lie with respect to legislative action. the Jay Mansion and Carriage House shall Defendants'motion for summary judgment be rehabilitated and the interiors converted was, therefore, granted unless plaintiff to residential use", for the Jay Mansion not demonstrated at a plenary trial that the to exceed three units and for the Carriage section prevented it from realizing any eco- House not to exceed six; that there be a nomic benefit from its property. Plaintiff's trapezoidal view way 90 feet in width at cross motion was denied. Plaintiff appeal- the rear of the Jay Mansion and 300 feet in ed to the Appellate Division, as limited b width at the southerly• Y y property line; that '. its brief, from Special Term's order except the new dwelling units may not be occupied n an y as to the section 1983 cause of action; de- until the exteriors of the Jay Mansion r ' fendants appealed from so much of that the Carriage House have been restored and order as directed a trial on constitutionality the interiors converted to residential use and denied summary judgment declaring and available for occupancy and that a the section valid and 'constitutional. The bond be posted to assure such rehabilita- Appellate Division, 109 A.D.2d 814, 486 eon and conversion; and that the applica- N.Y.S.2d 333, in a memorandum which re- tion for site plan approval be accompanied ferred only to the zoning aspect of the by, among other things, a draft condomin- section, reversed and declared the section ium offering statement together with a , "invalid as it constitutes an improper regu- draft of an easement and/or agreement for x lation of the form of ownership of proper- . perpetual maintenance of the exteriors of ty." (109 A.D.2d, at p. 815, 486 N.Y.S2d the Jay Mansion and the Carriage House. h 333.) We agree that it is unnecessary to Neither the statutes authorizing enactment consider the constitutional issues and that of zoning provisions nor those dealing with the zoning enabling provisions under which historic landmarks empower the City Coun- the City acted do not authorize it to regu- cil to adopt a local law with such provi- late ownership, and hold further that noth- sions, nor does anything in the Landmarks ing in the historical preservation provisions Preservation chapter of the City Code Sup- of the General Municipal Law or the Land- port its so doing. s marks Preservation chapter of the City Code, upon both of which the City relies, - A whether considered separately or in con- [1-31 Zoning laws are to be given a junction with the zoning enabling provi- strict construction because they are in der- a b 324 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 115 66 N.Y.2 ogation of common-law rights (Matter of made with reasonable regard to the charac- _U17notes .440 E. IO2nd St. Corp. v. Murdock, 285 ter of buildings erected in each district,the i a differ. N.Y. 298, 304, 34 N.E.2d 329; see, Matter value of land and the use to which it may properti of Frishman v. Schmidt, 61 N.Y.2d 823, be put, to the end that such regulations r minium £ 473 N.Y.S.2d 957, 462 N.E.2d:134). More- may promote public health, safety and wel- t with th over, there being no inherent power to en- fare and the most desirable use for which - that the E act zoning or land use regulation, an ordi- the land of each district may be adapted or, if di nance or local law provision for which legis- and may tend to conserve the value of t no indel lative delegation of power cannot be found buildings and enhance the value of land =`: it of Sul is ultra vires and void(Matter of Kamhi v. throughout the city." (Emphasis supplied.) which t =4, Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d Nothing in that subdivision speaks to ` owners] 865, 452 N.E.2d 1193). Power to adopt ownership rather than use, and while it ( Nor c provisions not expressly forbidden by.the does not expressly forbid provisions relat containE enabling authorization may, however, be ing to ownership, the City suggests noth- a applicab implied where there exists independent jus- in within the spirit of zoning legislation such juE g P g � tification for provisions within the spirit of generally or this subdivision specifically Planninj the enabling legislation (Collard a Incor- that offers justification for implying such E sonable po•rated Vil. of Flower Hill, 52 N.Y.2d 594, power. Indeed,the cases are legion,in this providec Is. 602, 439 N.Y.S.2d 326, 421 N.E.2d 818). State and elsewhere, which hold that "zon- ; land not fr [4) The enabling provision for resi- ing ' ' ' in the very nature of things has district rt dential zoning in cities is General City Law reference to land rather than to owner" i what th § 20(24).2 That subdivision empowers a (Vernon Park Realty v. City of Mount 1: Plannin; �.> city "To regulate and limit the height, bulk Vernon, 307 N.Y.493, 500, 121 N.E.2d 517) ; appropr and location of buildings hereafter erected, and that it is a "fundamental rule that 1 nance (. to regulate and determine the area of zoning deals basically with land use and f N.Y.2d yards,courts and other open aces and to not with the person who owns or occupies Y P P P ;. N.E.2d F s regulate the density ofiLtspopulation in any it" (Matter of Dexter v. Town Bd., 36 r given area, and for said purposes to divide N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 1 _ the town, sec r` the city into districts. Such regulations N.E.2d 870; accord, Matter of Weinrib v. - sates ai shall'be uniform for each class of buildings Weisler, 27 N.Y.2d 592, 313 N.Y.S.2d 407, £ deviatio (: throughout any district,but the regulations 261 N.E.2d 406, affg. 33 A.D.2d 923, 307 upon al a' in one or more districts may differ from N.Y.S.2d 603; Allen v. Town of N. Hemp- ► accomm those in other districts. Such regulations stead, 103 A.D.2d 144, 146, 478 N.Y.S.2d houses shall be designed to secure safety from 919; North Fork Motel v. Grigonis, 93 opment fire, flood and other dangers and to pro- A.D.2d 883, 461 N.Y.S.2d 414; see, Matter owners} mote the public health and welfare, includ- of Park TV Vil. Assoc. v. Abrams, 65 w sions, t; ing, so far as conditions may permit, provi- N.Y.2d 716, 492 N.Y.S.2d 27, 481 N.E.2d i implied sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold, access, and the accommodation of solar en- as did the North Fork Motel case, that a E: ergy systems and equipment and access to zoning ordinance cannot be used to exclude [5) i n - sunlight necessary therefor, and shall be a condominium.3 The City correctly j of the 2. Subdivision 25 authorizes regulation and-re- (387 Mass. 351, 439 N.E.2d 788); Bridge Park i exist, tl striction of trades and industries and,therefore, Co. v.Borough of Highland Park(113 NJ.Super. E the hist is not a source of power for the local law under 219,273 A.2d 397); Graham Cf.Assoc. v. Town consideration. In any event, it provides no Council(53 N.C.App. 543, 281 S.E.2d 418); see, also re, greater support for Local Law No.5 than subdi- McHenry State Bank v City of McHenry (113 has Re vision 24,for it authorizes no more than control III.App.3d 82, 68 III.Dec. 615, 446 N.E.2d 521); r N.H. 4 of where"buildings,designed for specific uses' Maplewood VU Tenants Assn.v.Maplewood ViL ! Cossell, may be located and of "the uses for which (116 NJ.Super. 372, 282 A.2d 428); but see, nald:i. buildings may not be erected or altered:' Goldman v. Town of Dennis(375 Mass. 197,375 r Zoning 3. City of Miami Beach v.Arlen King Cole Condo- N.E.2d 1212); Griffin Dev.Co. v.City of Oxnard 1 4. The minium Assn. (302 So.2d 777 [Flal, cert denied (39 Cal.3d 256, 217 Cal.Rptr. 1, 703 P.2d 339 (§ 28I; 308 So.2d 118); CUR Gen, v. City of Newton [19851). The general proposition is, however, i what I 16 66 N.Y.2d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325 Cite as 493 N.Y.S.2d 321 (CLApp. 1985) J117notes that exclusion of condominiums is tained in section 96-a and article 5-K of a different proposition than requiring that the General Municipal Law or the Land- _ property in a given area be held in condo- marks Preservation provision of the Rye minium ownership. However, we agree City Code (ch. 117). with the Appellate Division's conclusion Section 96-a of the General Municipal that the distinction is without a difference, Law reads as follows: "In addition to any or, if difference there is, that there exists power or authority of a municipal corpora- no independent justification within the spir- it tion to regulate by:planning or zoning laws of subdivision 24's zoning provision from which the power to require condominium and regulations or by local laws and regu- lations, the governing board or local legis- Nor does General City Law § 37, which lative body of any county, city, town or village is empowered to provide.by regula- tions,the cluster zoning authorization tions, special conditions and restrictions for applicable to cities such as Rye, provide the such justification. Under its provisions the and protection, enhancement, perpetuation use of unplaces, districts, sites, build- Planning Board is authorized to make rea- ings, structures, works of art, and other sonable changes in the zoning regulation, objects having a special character of special provided that the average density of the historical or aesthetic interest or value. land not be greater than is permitted in the district in which the land lies. Although Such regulations, special conditions and re- f what the legislative body can authorize its strictions may include appropriate and rea- Planning Board to do, it can do itself by sonable control of the use or appearance of appropriate amendment of its zoning ordi- neighboring private property within public -- nance (see, Cummings v. Town .Bd., 62 view, or both. In any such instance such N.Y.2d 833, 834, 477 N.Y.S.2d 607, 466 measures, if adopted-in the exercise of the ,41.2d 147; Rodgers v. Village'of Tarry- Police power, shall be reasonable and ap- towt, 302 N.Y. 115, 123, 96 N.E.2d 731), propriate to the purpose, or if constituting the section contains nothing which indi- a taking of private property shall provide cates an intention to do more than allow for due compensation, which.may include deviation from fixed dimensional zoning the limitation or remission of taxes.". Arti- upon application of the owner in order to cle 5-K is broader in scope,covering histor- accommodate group houses, apartment is preservation not only by regulation but houses or stores! Power to require devel- by governmental acquisition as well. Sec- opment of a 22-acre parcel in condominium tion 119-bb(4) defines "historic preserva- ownership cannot be implied from its provi- tion" to mean "for the purposes of this lions, therefore, any more than can it be article and notwithstanding any other pro- implied from General City Law § 20(24). vision of law, the study, designation, pro- tection, restoration, rehabilitation and use B of buildings, structures, districts, areas, [51 Authority to enact section 197-13.2 sites or objects significant in the history, of the Code of the City of Rye does not architecture, archeology or culture of this exist, therefore, unless it can be found in . state, its communities, or the nation." The the historical preservation provisions con- operative provisions of the article are con- also recognized in noncondominium cases(Wa- materia (see, Delaware Midland Corp. v. Incor- hos Realty Co. v. Little Boar's head Dist., 101 porated Vil. of Westhampton Reach, 39 N.Y.2d V.H. 460, 146 A.2d 257; County o/ Fayette v. 1029,387 N.Y.S.2d 248.355 N.E.2d 302.aft on Cossell,60 Pa.Commw.202,430 A.2d 1226; Fer- opn at Special Term 79 Misc.2d 438, 359 N.Y. Hold's Appeal, 17 Pa D &C 2d 291; Olemon v. S.2d 944). the City's authority is not enhanced, Toning Bd., 71 R.I.303,44 A.2d 720). for both speak to the "development of land in 4. The cluster provisions of the Town Law such a manner as to promote the most appropri. (§281)and the Village Law(§ 7-738)arc some- ate use of land". what more detailed, but even if read in pari •;;r 326 495 NEW YORK SUPPLEMENT, 2d SERIES 66 NXId 118 tained in section 119-dd, which is set forth of the Jay Mansion and the Carriage in full in the margin 5 House, proscribe the use of any new dwell- _Ut90f importance to the present issue is ing unit until that has been done, thus the fact that the regulation, special condi- effectively requiring that the cost of reha- r y tion or restriction by which section 119- bilitation be shared by owners in the dis- dd(1)authorizes control of private property trict of units other than the Jay Mansion is"for the protection,enhancement,perpet- and the Carriage House, and by dictating (' uation and use of laces districts sites condominium ownership of the entire dis- buildings,structures". Nothing in the sub- p - trict impose the cost of maintenance of the p g p exteriors of the Mansion and the Carriage x division speaks to regulation of ownership. g Noteworthy also is the fact that though House upon owners of such units as well. a- section 119-bb(4) refers to "restoration The right to impose reasonable controls and"rehabilitation",those words are not to on the use and appearance of neighboring be found in section 119-dd(1),'presumably private property within public view, given because it was intended to permit a munici- by General Municipal Law §§ 96-a and pality acting under section 119-1d(3) after 119-dd(1),cannot be stretched to cover pay- acquisition of a fee or lesser interest to ment of restoration and maintenance costs, restore and rehabilitate historic buildings for such•a construction, which would im- and sites, but not to permit the municipali- pose those costs upon every unit in the ty to impose an obligation to restore or district,not just those"within public view," rehabilitate such buildings or sites as re- would render meaningless the limitation in- main in private ownership. Here the Code tended by those words which appear in sections creating the Alansten Landmarks both sections. Yet there is no question i; Preservation District not only mandate that that such was the Council's intention, for the entire 22-acre district remain in single its findings with respect to the final envi- ownership but also impose upon the devel- rontnental impact statement flatly stated k' oper the duty of rehabilitating the exteriors that "[o]nly under [condominium] owger 5. The section, entitled"Local historic preserva- otherwise,acquire the fee or any lesser interest, ' tion programs,"reads as follows: development right,easement,covenant or other "In addition to existing powers and authori- contractual right necessary to achieve the pw- ties for local historic preservation programs in- poses of this article, to historical or cultural "e eluding existing powers and authorities to regu- property within its jurisdiction. After acquisi• late by planning or zoning laws and regulations tion of any such interest pursuant to this subdi- or by local laws and regulations for preserva- vision,the effect of the acquisition on the valua:. tion of historic landmarks and districts and use tion-placed on any remaining private interest in of techniques including transfer of development such property for purposes of real estate taxa- rights, the legislative body of any county, city, tion shall be taken into accottnt. town or village is hereby empowered to: "4. Designate, purchase, restore, operate, - "1. Provide by regulations,special conditions lease and sell historic buildings or structures. and restrictions for the protection, enhance- Sales of such buildings and structures shall be ment, perpetuation and use of places, districts, upon.such terms and conditions as the local sites, buildings, structures, works of art and other objects having a special character or spe- legislative body deems appropriate to insure the vial historical, cultural or aesthetic interest or maintenance of the historic quality of the build- value. Such regulations,special conditions and ings and structures,after public notice is appro- restrictions may include appropriate and rea- priately given at least thirty days prior to the sonable control of the use or appearance of anticipated date of availability and shall be for neighboring private property within the public fair and adequate consideration of such build- view, or both. ings and structures which in no event shall be "2. Establish a landmark or historical preser- less than the expenses incurred by the munici• tY uation board of commission with such powers pality with respect to such buildings and strut- as are necessary to carry out all or any of the lures for acquisition, restoration, improvement authority possessed by the municipality for a and interest charges. , historic preservation program,as the local legis- "5. Provide for transfer of development lative body deems appropriate. rights for purposes consistent with the purposes "3. After due notice and public hearing, by of this article." purchase, gift, grant, bequest, devise, lease or 66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE t. f. Cite ae 495 N.Y.S.2d 321 (Ct.App. 1985) 327 ship can the cost of maintaining the exteri- out violating the Constitution, nor need we ors of the historic buildings be shared reach the question whether as applied to 12oby all the homeowners", and that theme plaintiff's property section 197-13.2 is con- is repeatedly emphasized in the City's brief stitutional. We hold rather that in light of to this court. While that may be true, the well-recognized rule that statutes are clearer authorization to enact such provi- to be construed so as to avoid constitution- sions than are contained in the General al issues if such a construction is fairly Municipal Law sections referred to is es- possible (Matter of Peters v. New York sential before section 197-13.2 can be up- City Hous. Auth.,, 307 N.Y. 519, 527-528, held against the argument that it was be- 121 N.E.2d 529; see, People v. Felix, 58 yond the City's power to enact. N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 Noteworthy also, in view of the require- N.E.2d 757; McKinney's Cons.Laws of ment that the Mansion and Carriage House N.Y., Book 1, Statutes § 150), the General be completely restored before any other Municipal Law sections under consideration unit can be occupied is the absence from as presently written should be construed not to authorize imposition of restoration the General Municipal Law sections of au- thority to require restoration, as distinct costs solely upon plaintiff and purchasers from maintenance. Landmark and historic from plaintiff or maintenance costs upon preservation laws normally prevent altera- purchasers of properties other than those tion or demolition to be preserved. .of existing structures unless the owner can demonstrate hardship C (Penn Cent. Tramp. Co. V. City of New y:, York, 42 N.Y.2d 324, 330, 397 N.Y.S.2d In view of the distinctions between zon- 914,366 N.E.2d 1271,affd. 438 U.S. 104, 98 ing regulation, historic district regulation - - S.Ct. 2646, 57 L.Ed.2d 631), but if they and landmark regulation recognized in place an undue and uncompensated burden Penn 121 Cent. Tramp. Co. v. City of New on the individual owner may be held uncon- fork, 42 N.Y.2d, at p. 330, supra, 397 stitutional (Lutheran Church in Am. v. N.Y.S.2d 914, 366 N.E.2d 1271, we note City of New York, 35 N.Y.2d 121, 129, 359 that chapter 117 of the Rye City Code deals N.Y.S.2d 7, 316 N.E.2d 305) because "it with landmarks preservation and is re- forces the owner .to assume the cost of ferred to in section 197-13.2(C)(1). As providing a benefit to the public without chapter 117 read when the Alansten Pres- recoupment"(French Investing Co. v. City ervation District section was enacted, land- of New York, 39 N.Y.2d 587, 596, 385 N.Y. mark designation required the property S.2d 5, 350 N.E.2d 381; see, Dunham, Aowners consent, but effective December 7, Legal and Economic Basis For City Plan- 1983, chapter 117 was amended to remove Wing, 58 Colum.L.Rev, 650, 665). Here, the'consent requirement and provide for sF landmark designation by the City Council society at large bears no part of the cost of alone,6 and .effective July 18, 1984, the restoration, it is rather to be borne initially by plaintiff and ultimately by the purchas- Alansten 22-acre site and the exteriors of els of dwelling units within the district. the Jay Mansion and of the Carriage Housewere designated as protected. Nothing in Yet the City's expert appraiser agreed that that designation or in the provisions of restoration costs of approximately$627,000 chapter 117, which concern only mainte- for the Jay Mansion and $588,000 for the nance of a landmark and the circumstances Carriage House would be required. under which it can be demolished, provides �► We do not hold that the General Munici- support for the provisions of section 197- pal Law sections could not be drafted to 13.2 requiring that the Alansten property impose restoration costs on an owner with- be held in single ownership in condominium b..On June 18, 1984, the Alansten 22-acre plot before Supreme Court,Westchester County,in a Was so designated. The constitutionality of the declaratory judgment action entitled DGM Part- amended version of the chapter is awaiting trial hers-Rye v. City of Rye. . a v, 328 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N-Y.2d 121 form or the imposition of restoration, as er to add request for reductions in unpro-distinct from maintenance, costs upon the tested assessments on improvements. property owner and ultimately upon pur- 1 chasers of dwelling units within the dis- trict. Wachtler, C.J., filed dissenting opinion in which Meyer and,Kaye, JJ., concurred. For the foregoing reasons, the order of the Appellate Division declaring Rye City Code § 197-13.2 invalid is affirmed, with Taxation 0-493.7(l) costs. Court was without authority to grant amendment to petitions alleging error in �4 assessed value of land only, p WACHTLER, C.J., and JASEN Si- y, based on ro- °r"' MONS, KAYE, ALEXANDER and TI- tests similarly limited, to permit taxpayer TONE, JJ., concur. to add request for reductions in unprotest- ed assessments on improvements.Order affirmed, with costs. M TSIE „j123Adolph Koeppel, Anne J. Del Casino OYMUNBlRSYS!!M and Donald F. Leistman, Mineola, for ap• pellant. } Edward G. McCabe Co. At}' ty. (Joshua A. ; Elkin, Mineola, of counsel), for respon- dents. 1 t 485 N.E.2d 993 3 ' 66 N.Y.2d 122 _LVaOPINION OF THE COURT 7 ,JZ2In the Matter of STERLING SIMONS, Judge. 1 t. ESTATES, INC., Appellant, Petitioner is the owner of real property i i= V. in Valley Stream, New York, known as the- c l' BOARD OF ASSESSORS OF the Green Acres Shopping Center. It has insti- a . tuted several proceedings pursuant to Real COUNTY OF NASSAU et al., {' .l Property Tax Law article 7 seeking a re- �. r Respondents. duction in the land assessments on the sev- Court of Appeals of New York. eral parcels making up shopping the sho center F ".' property for the tax years 1967/1968 n Oct. 24, 1985. through 1977/1978. In 1982 it,moved to c, amend the petitions requesting, along with B other relief, permission to allege error in 1. N Taxpayer moved to amend petitions the assessed value of lots not previously y filed in tax certiorari proceedings to in- protested and in the assessed value of im• pt crease amount of claimed reductions on provements on lots that had been protest fi: basis that assessments were unequal, ex- ed. Special Term denied that relief, hold- cessive, or otherwise valid. The Supreme ing that it lacked jurisdiction to permit Court, Nassau County, Farley, J., denied amendment of the petitions to add a chal- $ m motion, and taxpayer appealed. The Su- lenge to lot or improvement assessments Pt s - preme Court, Appellate Division, 104 which had not been protested previously t W. A.D.2d 599, 479 N.Y.S.2d 381, affirmed. during the statutory period for administra su On appeal by permission of the Appellate tive review. The Appellate Division af• ! se. Division, the Court of Appeals, Simons, J., firmed, with one judge dissenting (104 ta. held that Court was without authority to A.D.2d 599, 479 N.Y.S.2d 381). On this bit grant amendment to petitions alleging er- appeal petitioner presses only the court's 4 int ror in assessed value of land only,based on ruling denying amendment to add a chal- ha protests similarly limited, to permit taxpay- lenge to the assessed value of the improve- F pu saw 1 .1",,(1. "��r!/� GI�i "tea �" KY.1l`a( .4•l°+v .At°+.R SUMMIT SCHOOL v. NEUGENT 77r Cite as,App.M.,442 N.Y.S.2d TS ,Y ; ducted on the premises which are the sub- school, the details of the operation of the _ `1�� ject of the special permit (Matter of Com educational processes of the institution, and f munit Synagogue 3 5 y v. Bates, 1 N.Y.2d 445, also equally improper and beyond its power 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter of to impose such conditions, as here, by an Schlosser va Michaelis, 18 A.D.2d 940, 238 agreement with the applicant. N-Y.S.2d 433; Matter of Oakwood Is. Yacht Club v. Board of Appeals, 32 Misc.2d 677, [6] To the extent that appellants may ;if _ 22I N.Y.S.2d 907; Matter of Long Is.Light be properly precluded by a prior waiver of a r Co. v. Vcehl, 27 Misc.2d 943, 211 N.Y.S.2d statutory ,or constitutional right to chal- 576, affd. 15 A.D.2d 512, 222 N.Y.S.2d 589; lenge the official action of the municipality ' Matter of De Ville Homes v: Michaelis, in relation to zoning,such waiver is ineffec- tual to foreclose such attack' where the s:x Sup., 201 N.Y.S.2d 129; Bernstein v. Board right concerns a matter of public lie of Appeals, Vll. of Matinecock, 60 Mise.2d g P policy(see f--� 470,302 N-Y.S.2d 141,app. dsmd.31 A.D.2d Brous v. Town of Hempstead, 272 App.Diva 31, 69 N.Y.S.2d 258). 650, 297 N.Y.S.2d 702, mot. for Iv. to app. ) t den. 23 N.Y.2d 646 299 N.Y.S.2d 1025 247 By their agreement the a (�, appellants have +;r.•�t N.E.2d 498). effectively waived all objections to the "R "conditions subsequent",except those under -h 'Where, as here, the special permit con- tains specific conditions which have been which the municipality sought to assume y} >t control over some aspects of the educational the subject matter of ari agreement be- 4= l�z Process of the school, an effort for which it tween the Board of Appeals and the appli- cant, such conditions must also pertain ex- was neither professionally equipped nor le- gaily authorized to undertake. _ }» ( elusively to the zoning use of the land andl: 1 is not to the details of the operation of the [?] Those conditions subsequent r business to be thereon conducted, which, in which may intrude upon the educational �" t this case, concerns the teaching of handi- processes of the appellants, as opposed to a capped children with learning disabilities, their use of real property, are contrary to pursuant to a constitutional mandate im- public policy and may not be the subject posed upon the State to "provide for the matter of a waiver. maintenance and support of a system of Our inquiry is now focused upon many free common schools, wherein all the chil- clauses of the "conditions subsequent" des- dren of this state may be educated."` y (N.Y. ignated "D'; which, for the reasons herein- `n Const., art. XI, § 1; emphasis added.) below stated, suffer such infirmity. It is [5] We are dealing here with a private there provided as follows: school teaching enterprise,'authorized and "D. Students will be under 18 years of operated under contract to carry out the age and will be limited to those with ` w State's obligation to provide education for so-called 'Learning Disabilities'; regular ;2:1;; such handicapped children with learning educational classes will be held during the } disabilities, pursuant to article 89(§§4401— months of September through June in- f 4409) of the Education Law, and it would elusive, on Mondays through Fridays, in- `- � l not only be contrary to "the strong public elusive, from approximately 9:00 A.M. to � Y.t policy of the State which favors the educa- approximately 4:00 P.M.; any or athletic Lion of all children, however handicapped" recreational activities shall be of second- '�`'.= •�Nr (Rogers v.Association for Help of Retarded ary importance and will be held either - ��- Children,308 N.Y. 126, 132, 123 N.E.2d 806, indoors, or sufficiently distant from the emphasis added; Matter of Wiltwyck north and south boundaries of the proper- School for Boys v. Hill, 11 N.Y.2d 182, 227 . ty, both, to the end that neighboring N.Y.S.2d 655, 182 N.E.2d 268, supra), and owners will not, be disturbed by loud } { in excess of the legislative power conferred noise or otherwise; no summer camp or yy upon a municipality, to impose, as a condi- vacation activities of any kind will be tion of a special use permit for a private held or maintained at any time on the. P,O.K. RSA, INC. v, VILLAGE OF NEW PALTZ Cite as 335 N.Y.S.2d 476(AM.3 Dept. 19") 479 :ecutive Law §§ 370-. plied) (Executive.Law former § 383, re. .fies.as multifamily. dwellings, L.1981, ch. ?07 12). . y gs, into condo- Multiple Residence pealed by certificates of occu- § ) miniums,also considered multifamily dwell- The certificates of.occupancy issued in con- ings, it goes beyond the Village's enabling nection with.plaintiff's apartment complex authorization and therefore the local law is inicipalities to enact from 19.63.to 1969'proclaim that the build- ultra vires and void (see, FGL & L Prop. laws (Multiple Resi- ings conformed] to. all of'the require- ,Corp, V. City of Rye, supra, 66 N.Y.2d at ments.,of.the applicable provisions of the 115, 495 N.Y.S.2d 321, 485 N.E.2d 986; he third cause of ac- law" existing'as of the date of.issuance .,North Fork Motel-v. :Grigonis, supra).' _ s predicate that the (see, 4-Rathkopf; The Law of Zoning and the power to enact Planning § 49.07, at' 49r41). Local Law : cause it contravenes No. 21 does"not detract from that assur- "'MAHONEY, P.J., and MERCURE, J., concur. iltiple Dwelling Law ance, for it requires the building inspector , :idence Law § 302(5) -to detetmine if the structure meets current KANE, J., concurs in part and rmer § 383. Undeni- building construction-laws. - Although the dissents in part in an opinion. )t establish local laws already-promulgated certificates attest that Order modified, on the law, without :e State Constitution the complex met building•code regulations costs, by reversing so much thereof as defined as laws extant at the time they.were issued, there denied plaintiff's motion for summary judg- ll villages (N.Y. is no guarantee that they meet today's ment; plaintiff granted summary judgment 3 ][c], [d][1]; Munici- (see, id, at 49-38). For example, on its first cause of action and-defendant's v § 10[l][ii][a][12]), the New.-York Building Code was repealed Local w No. 21 declared ultra virea and te, however, is not effective January 1, 1984, and replaced by 'void; and, as so modified, affirmed. of these three stat-. 'the current New York Uniform Fire Pre- vention and Building Code Act, which be- came effective July 21, 1981 (L.1981, ch. KANE, Justice (concurring in part and Dwelling Law and 707, §§ 12, 20). Local Law No. 21's re- dissenting in part). 1w adverted to pro- quiremen t''that' plaintiffs buildings now In respectfully dissenting, I'note my Con- n an individual pur- meet current building and fire regulations 'currence with the majority's reasoning as ]ling relies on a pre- does not offend the Executive Law former to the merits of plaintiffs second and third Ae of occupancy, no § 383 guarantee, causes of action. )e advanced that the . In my view,however,the ' CS] There is, however, merit to the com- ordinance is a legitimate exercise of the -m to the provisions plaint insofar as the-first cause of action is Village's police power and I would, there- iters of those laws _concerned,for"iis plaintiff rightly suggests, ' fore, affirm Supreme Coures dismissal of f the certificate (see, :the Village-does iiot:have the legislative Plaintiffs first and second causes of action. r § 301[5]; Multiple power to regulate the'conversion of proper- "To be sure, a Village ordinance enacted i]). These sections ty,ownership 'which does not involve an under the police power must bear a reason- the dwelling was not alteration in the owner's use of the proper- able connection to the'public health, com- ose laws.when the ty. Municipalities have no inherent capaci- fort, safety and welfare" (D'Ingelo v 1; Local Law No. 21 ty to mandate the manner in which.proper- Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900, contrary. .., ty may be owned or held (FGL & L Prop. :490 N.E.2d 819; see, Village Law oval law contradict Corp.'v. City of Rye, 66 N.Y,2d 111, 113, § 4-412[1]). I agree.with the majority 383. That statute 495 NX.S.2d 321i 485 N.E.2d 986). They that, absent a delegation of power, a vil- must acquire such power from the State. lage may not mandate the manner in which -Absent such a delegation of power, a mu- . property may be owned (see, FGL & L late of occupancy •=nicipality cannot employ a zoning ordinance Prop. Corp.'i. P v. City of Rye, 66 N.Y.2d 111, I set aside or vacat- to exclude or discriminate against the con- 113, 495 N.Y.S.2d 321, 485 N.E.2d 986). eview or a court of dominium form'of ownership (North Fork However,the clear legislative target of the n, be and remain Motel v. Grigonis, 93 A.D.2d 883, 461 N.Y. ordinance at issue here is the condition of e upon all state and S.2d 414). 'As'Loeal Law No..21 encumbers the property as to all matters P P rty at the time of conversion, not sponsors' efforts to convert apartments, its form of ownership. The encumbrance no order, direction which the Village zoning ordinance classi- directed at conversion is, in my view, inci- variance therewith iued by any other The certificatei of occupancy issued in plaintiff Executive Law provision was repealed effective ency(emphasis sup- in 1986, 1987 and 1988 are irrelevant for the In 1984 (L.1981, ch. 707, §§ 12, 20). purposes of this argument for the applicable .JAN APPLICATION OF MICHAEL CHOLOWSKY, TO THE ZONING BOARD OF APPEALS, MEMORANDUM OF LAW TOWN OF SOUTHOLD X FACTS This is an application to the Southold Town Zoning Board of Appeals for a variance to the Southold Town Zoning Ordinance, Article III, Section 100-31B(7) (c) concerning the proposed establishment, construction and operation of a golf driving range, a 'miniature golf course and building with office accessory and incidental thereto . The subject premises is known , as 3340 Horton ' s Lane, Southold, New York, . bears County Tax Map Parcel I .D . No . 1000-55-1-9 and contains 16 . 7± acres . Said property is owned by Lorinda C . Casola and the applicant is the holder of a long-term lease thereon with an option to purchase . Applicant has applied to the Southold Town Building Department for a building permit, but a Notice of Disapproval has been issued, stating that the applicant requires both a special exception and a variance . Section 100-31B(7) (c) states that any of the special exception clubs and uses allowed within said Section " . . . shall not be conducted for profit as a business enterprise . " It is the applicant ' s contention that the purported limitation of such special exception uses to not-for-profit enterprises is clearly illegal and that a variance should be granted allowing the applicant to conduct such a use as a business enterprise for profit . LEGAL ARGUMENT Article 16 of the Town Law regulates zoning and planning by the various towns within the State of New York , Section 261 thereof establishes the power granted to the towns by the State of New York and reads as follows : For the purpose of promoting the health, safety, morals, or the general welfare of the community, the town board is hereby empowered by ordinance to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes; provided that such regulations shall apply to and affect only such part of a town as is outside the limits of any incorporated village or city; provided further, that all charges and expenses incurred under this article for zoning and planning shall be a charge upon the taxable property of that part of the town outside of any incorporated village or city . The town board is hereby authorized and empowered to make such appropriation as it may see fit for such charges and expenses, provided however, that such appropriation shall be the estimated charges and expenses less fees, if any, collected, and provided, that the amount so appropriated shall be assessed, levied and collected from the property outside of any incorporated village or city , Such regulations may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent, and in accordance with general or specific rules therein contained . Nowhere in said section is there any grant of power to regulate the form of ownership of property within the context of the zoning and planning authority of a town . In fact, cases are legion that such a power to regulate the form of ownership does not and cannot exist . Indeed, it is a fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it . (See Matter of Dexter V . Town Board, 36 N . Y. 2d 102, 105, 365, N .Y . S 2d 506, 324 N . E . 2d 870; accord, Matter of Weinrib V Wiesler, 27 N . Y . 2d 592, 313 N .Y. S . 2d 407, 261 N . E . 2d 406, Affg 33 A . D . 2d 923, 307 N . Y . S . 2d 603; Allen V Town of North Hempstead, 103 A . D . 2d 144, 146, 478, N . Y. S . 2d 919; North Fork Motel V Grigonis, 93 A . D . 2d 883, 461 N .Y. S . 2d 414; See, Matter of Park W . Vil Assoc . V . Abrams, 65, N . Y. 2d 716, 492 N . Y . S . 2d 27, 481 N . E . 2d 567) . Annexed hereto are copies of the North Fork Motel V Grigonis and FGL&L Property Corp V City of Rye decisions . It is absolutely clear and certain from the foregoing cases that the attempt in Section 100-31B(7) (c) of the Zoning Code to restrict the allowable special exception uses to not-for-profit entities is a legal nullity . As expressed in all of those cases, it is use rather than form of ownership that is the proper concern and focus of zoning and planning regulations . The decisions of all levels of courts in this State, including the Court of Appeals (the highest level court in this State) are uniform in holding that a zoning ordinance may not regulate the form of ownership of property, as distinguished from regulating the use of said property . CONCLUSION The Southold Town Zoning Board of Appeals should grant the requested variance to allow the applicant to establish, construct and operate a golf driving range, miniature golf course and building with accessory office thereto under any form of ownership, including a business enterprise for profit, which said applicant deems appropriate . Respectfully submitted, J . KEVIN MCLAUGHLIN Attorney for Applicant, Michael Cholowsky 828 Front Street, PO Box 803 Greenport, New York 11944 (516)477-1016 G ,ss: - _ •• - I`(r� it 414 461 NEW PORK SUPPLEMENT, 2d SERIES Wickham, .Wickham & Bressler, P.0, i Smith, 93 A D 2d 883 ; &'.Yakabc Mattituck,(Eric. J. Bressler, Mattituck, of _ k + counsel), for appellant. ; NORTH FORK MOTEL,,,.INC, Riverhead Posner,&„Posner, Mount Vernon (Linda Respondent, Esseks, S.Jamieson,Mount Vernon,of_,counsel),for v ' [ head (Ste counsel), f William Sirignano, receiver respondent. Charles GRIGONIS,Jr ,et al,,constituting Before GIBBONS, J.P:; and GULOTTA, the Zoning;:;Board ,of Appeals..of. the { Before O'CONNOR and NIEHOFF, JJ. Southold. :et al, ;Appellants BRACKET MEMORANDUM BY THE COURT. Supreme Court, Appellate Division, ;MEMOI In an'action, inter alia,-fora declaratory Second Department. - t In a CP judgment to determine the ownership of a ppnl 25, 1983 : w peal is fr. publishing house, defend ant;'appeals:from. ,r ct�' Court,Suf an order of"the'Supreme Court;Westches- $r which an; ter County,i entered, September,:,9„_1982, �1 inspectors which, upon'the:respondent receiver's;mo- Town zoning board of appeals appealed P Hinderma f tion to punish him for contempt of a prior from a, judgment of the`Supreme Court, x< December order of the same court,.adjudged,him in Suffolk.County,`.Gerard, J,'which annulled ,, terminatic contempt and permitted him to purge him- determinations of building inspectors.and a a g t of the Tc self'thereof by,"inter alia, rendering an determination of the zoning board";of ap- 1981 whic 0. account:` _ peals which denied''applications forpermis bey for„p rmi; Order reversed,without costs or,disburse- sion to °change the';'form°of ownership of } �ershie of F P merits;and matter.remitted 6,.Special Term' 'certain,premises, The Supreme'Court,-.Ap- a xr[� Judgme for further_ roceedin s consistent herewith. ellate Division' held,that special term cor [ P g . en. [1;2] The record before;this court fails ectly.. concluded ncluded that the—conversion of` } '{ bursem to'indicate - ownership of the subject property .whether defendant 'was' ad from a [1,2] judged guilty of civil or criminal'eontempt corporate form to a condominium form was #� ployed by and'at the,hearing which must be conduct not violative,.of the:,town zoning ordinance miniiims c ed, the'course being pursued'must be made ' provided the property's use,as a.motel re- i minium f clear. -Adjudging defendant to be in crimi- : mained unchanged rather th.: e.0 r` proper co nal'contempt is not warranted on`this rec- Affirmed.,, ord,:as there is no finding that the'`alleged. ' planning 1 disobedience of the prior order of the court "3 Maplewoa wood Vil.,: was willful,and similarly an adjudication of civil contempt is not warranted .because `1• Zoning and Planning 72 }Fl Bridge P. there is no finding that de actions Zoning ordinances.cannot be employed, �I , Park,`113 were calculated to or actually did defeat, by a-municipality to,exclude codom►nmms: Ator� does impair or prejudice the right and remedies or, discriminate'against condominium form ownership of the plaintiff(see Matter of Ross v. Sher- of ownership,.for it is use'rather than.form ~ valid exis wood Diversified Servs., 88 A.D.2d 936,450 of ownership that,.is proper' concern and a` of Miami N.Y.S.2d 872). focus of zoning and;planning r9p,ations 4r„ ininium A r Also defendant denied that he had failed McKinney's Town Law §.261 mkt :'Court"As: } Chapel li to turn over any assets of Queens House,as.,. 2 Zoning grid Planning76 418). 'Ac, ` was.alleged by the receiver. Questions of fact were raised on that and other issues Special term correctly concluded that 7 f concluded conversion .of ownership of property, from; of,the su that,could not be resolved,without a hear- , § form to.a ing(see Crisona v.Eastern Props. Improve corporate form to condominium form Yeas; merit,Corp. 27 A•D.2d,.717,.717-718, 277 not violative::of town zoning ordinance pro-c , �� ; of'the zc P, ,. Southold, N.Y,S.2d.477;, Kamen y Kamen,. A.D.2d, vided, property's,,use as,a,motel_remained' h�r r a ged,:, Me nney'sTown Law § 261 � use_'as a r .985, 216 N.Y.S.2d.715) unch n F 777 777 h f f t Z4 s j 1 MEDARIS v.'vosBURGH � ' 415 � � - � � : • : `' , Cite as 461 N Y.S.2d 415(A.D.2 Dept. 1983) ' Smith, Finkelstein; Lundberg, Crimmins 93 A.D.2d 882.; & ,Yakaboski 'Riverhead.'(Frank 'A:' Islet; i C•� Riverhead, of counsel), for appellants: Virginia C. MEDARIS, Respondent,'' i ? Essek's, Hefter;Cuddy &'Angel, River= V. head (Stephen R.' .Angel, Riverhead, 'of counsel), for respondent. Lee Frederick VOSBURGH,`et aituting a' al., Defendants, of the "' Before MANGANO, J.P.; and GIBBONS, j :eilants Bruce Robert Heinzen et al.; Appellants.. BRACKEN and NIEHOFF, JJ. + . ;ion, Sr` Supreme Court, Appellate Division, MEMORANDUM BY THE COURT. r ' Second Department. ; In a'CPLR article 78 proceeding, the,ap- : t;. peal is from a judgment of the Supreme April 25, 1983.: t. Court,Suffolk County,entered July 1, 1982, which annulled determinations of building , +pealed inspectors George H. Fisher and Edward F. In medical malpractice action to recov- Court, Hinderman, dated February, 13,' 1980 and er damages for personal injuries, plaintiff G inulled s ';. December 22, 1980, respectively, and a de- refused to answer certain interrogatories and a termination of:the Zoning Board of Appeals propounded, by defendant.. The Supreme of ap- 1, ' of the Town of Southold, dated June 25, Court Suffolk County,McCarthy,J.,denied ermis- t 1981,which denied petitioner's applications defendant's motion to compel answers to for e'rmission to,change the form of own :;ip of persh interrogatories, and defendant appealed. ip o n premises..,-. f certain ,, , , + t, Ap- vG' The Supreme Court, Appellate Division,. n cor- Judgnient.affuned, without costs or dis- held.that trial .court 'erred in denying de " )n of bursements. fendant's motion to compel on basis that -om a interrogatories did not ask for,facts but for (1,2] Zoning ordinances cannot'be em- ° was °Pinions and amplifications of allegations of ployed by a municipality to exclude condo- ,lance miniums or discriminate against.the.condo- negligence, especially.where plaintiff had { el re- minium form .of ownership, for it.is use failed to make timely motion to strike chal- k { j rather than form of ownership that is,the lenged interrogatories. I } z Proper concern and focus of zoning and Order reversed; motion to compel an- 'c ; Planning regulations(see Town Law,.§ 261; swers granted. 3faplewood Vil. Tenants Assn. v. Maple- , `- wood Vil.,'116 N.J.Super.372,282 A.2d 428; r, Bridge'Park'Co. v. Borough of Highland oyed 1. Pretrial Procedure *+284, 305 z+, �: Park, 113 N:J.Super. 219, 273 A.2d 397). Bums Nor does'the mere change in.the type of, In medical malpractice action, trial 'orm `;` ownership result in the destruction' of.'a court erred in denying defendant's motion °rm valid existing nonconforming use (see`'City to compel plaintiff to answer interrogato- , and of Miami Beach v. Arlen King Cole Condo- ries on basis that such interrogatories did r� ons. minium Assn.,'302 So.2d 777[Fla.]; Graham,. not ask for facts but for opinions'and ampli- Court'Assoc. v. Town Council'of Town of fications of allegations of negligence, espe= Chapel Hill, 53 N.C.App.'543, 281 S:E.2d cially where plaintiff had,failed to make' 418). :AccordinglyiSpecial Term correctly timely motion to strike challenged interrog p hat .:` A.'. • 'concluded that the.conversion of ownership- atories. McKinney's CPLR_3101(a), 3124,, ` rom t of.the subject property from a corporate 3131, 3133(a). was " form to a condominium form is not violative 4 of"the zoning'ordinance of the"Town of 2.-Pretrial Procedure a 242 7 rs ned Southold;,provided the property's present Purpose of interrogatories is distinct '61 iif was a motel remains unchanged: from that of bill of particulars; while inter- S: 2 FGL & L PROPERTY CORP. v. CITY OF RYE 333 Cite as 486 N.Y.S.2d 333 (A.13.2Dept. 1985) N.Y.2d 942, 298 N.Y.S.2d 724, 246 N.E.2d miniums,' was invalid, since it'constituted I is 527). improper regulation of form of ownership of property. CE 3. Zoning and Planning e:-61 W I VE;NUMBER T Municipality does not have power to regulate manner of.ownership of legal es- tate, as it is use rather than form of owner- 109 A.D.2d 814 ship that is proper concern and focus of FGL & L PROPERTY CORP., zoning and planning regulations. Appellant-Respondent, V. Weil' Gotshal & Manges, New York City The CITY OF RYE, et al., (Peter Gruenberger, Lesley E. Goldberg Respondents-Appellants. and Robbie-Nardisse, New York City, of counsel), and Berger, Steingut, Weiner, Supreme Court, Appellate Division, Fox & Stern, New York City (Theodore S. Second Department. Steingut, New York City, of counsel), for March 18, 1985. appellant-respondent (one brief filed). Richard M. Gardella, Corp. Counsel, Rye, Action was brought seeking.,to have for respondents-appellants. declared unconstitutional an ordinance Meighan .& Necarsulmer, Mamaroneck which purported to create new zoning dis-' (Garrison I R. ::Corwin, Jr., Mamaronick, of counsel), for friends of Marshlands, Inc. trict, applicable only to one person s 22- it acre lot, and which directed that purported and Federated Conservationists of West- district be maintained in single ownership Chester County, Inc., amici curiae. and that any.development of proper ty be Before LAZER, J.P., and MANGANO, limited to residential condominiums. The Supreme Court, Westchester County, John BRACKEN and NIEHOFF,JJ. C. Marbach, J., denied injunctive relief MEMORANDUM BY THE COURT. against enforcement of ordinance pending In an action, inter alia., for a judgment ce hearing to determine if ordinan' was con- declaring Rye City Code § 197-13.2 invalid ZZ fiscatory, and appeal was brought.' The and unconstitutional, plaintiff appeals, as Supreme Court, Appellate Division, held limited by its brief, from so much of an that ordinance was invalid since it consti- order of the Supreme Court, Westchester tuted improper regulation of form of own- County,.entered March 5, 1984, as denied ership of property. injunctive relief against the enforcement of Reversed. that section of the city, code pending a f. hearing to determine if said•section was 1. Zoning and Planning C�1 confiscatory with respect to plaintiff's property, and defendants cross-appeal from Zoning is concerned with use of land, so much of the same order as denied their and not with person who owns or occupies motion for summary judgment declaring it said section of the city code valid. 2. Zoning and Planning e-61 Order reversed insofar as appealed from, Ordinance which purported to create on the'law,with costs,the second and third new zoning district, applicable only to one decretal paragraphs thereof are deleted, person's 22-acre lot, and which directed and-it. is declared that Rye City Code that purported district be maintained in § 197-13.2 is invalid as it constitutes an single ownership and that any development improper regulation of the form of owner- of property be limited to residential condo- ship of property. •,t 334 486 NEW YORK SUPPLEMENT, 2d SERIES The ordinance in question purports to In light of our determination, we do not create a new zoning district,applicable only reach the other issues. to plaintiff's 22-acre lot. The ordinance further directs, among many other things, w 4 fc KEY NUMBER SYSTEM that the purported district must be main- r tained in single ownership, and further pro- vides that any development of the property, 109 A.D.2d 815 which is severely restricted, be limited to FIRE ISLAND PINES, INC., residential condominiums. Respondent, [1] As a fundamental principle, zoning V. {' is concerned with the use of the land, and COLONIAL DORMER not with the person who owns or occupies it (see, e.g., Matter of Dexter v. Town Bd. CORP., Appellant. of Town of Gates, 36 N.Y.2d 102, 105, 365 Supreme Court, Appellate Division, N.Y.S2d 506, 324 N.E2d 870; Matter of Second Department. Weinrib v. Weisler, 33 A.D2d 923, 307 N.Y.S2d 603,affd. 27 N.Y2d 592, 313 N.Y. March 18, 1985. S2d 407, 261 N.E2d 406; North Fork Mo- tel v. Grigonis, 93 A.D2d 883, 461 N.Y. Default judgment was entered against S2d 414; Allen v. Town of North Hemp roofing company in action for damages al- stead, 103 A.D2d 144, 478 N.Y.S2d 919). legedly resulting from defective work. [2,31 The instant ordinance, which pur- The Supreme Court, Nassau County, John G W. Burke,J., denied roofing company's mo- ports to direct how the property may be held to the exclusion of all other forms of tion to vacate, and it appealed. The Su- ownership, must fail because, as a general Preme Court, Appellate Division, held that T, ;u principle, a municipality does not have the where complaint was properly forwarded to s' power to regulate the manner of ownership insurer, which neither filed an answer nor of a legal estate, as "it is use rather than denied coverage,roofing company was enti- form of ownership that is the proper con_ tled to have resulting unintentional default tern and focus of zoning and planning reg- judgment vacated, particularly in light of ulations" (North Fork Motel v. Grigonis, evidence of meritorious defense, and ab- supra, see also McHenry State Bank v. sent claim of prejudice by opposing party. City of McHenry, 113 I11.App.3d 82, 68 Order .reversed; motion to vacate Ill.Dec. 615, 618, 446 N.E2d 521, 524; CHR granted. Gen., Inc. v. City of Newton, 387 Mass. 351, 439 N.E2d 788, 791; Bridge Park Co. Judgment e-143(3) v. Borough of Highland Park, 113 N.J.Su- Where insured roofing company for- per. 219, 273 A2d 397, 399; County.of warded complaint alleging defective work Fayette v. Cossell,,60 Pa.Cmwlth. 202, 430 to its insurer through broker, broker as- A2d 1226, 1228; Graham Ct. Assoc, v. sured roofer that insurer would provide ' Town Council of Town of Chapel Hill, 53 defense, and insurer neither filed answer N.C.App. 543, 281 S.E2d 418). Although nor disclaimed coverages roofer was enti- ; in the majority of the above cases the gen- tied to have resulting unintentional default eral principle was invoked to prevent a judgment vacated, particularly in light of a municipality from excluding the condomin- affidavits demonstrating meritorious de- j ium form of ownership, and here the in- fense, and absent claim of prejudice by stant ordinance permits that form of own- opposing party. ership to the exclusion of all others, the result is the same. The city here has at- tempted to dictate how property may be Jay Berliner, Massapequa, for appellant. owned, and that is exactly what it is not Harold F. Damm, Mineola, for respon- authorized to do. dent. E , i 66 N.Y.2d 111 FGL &L PROPERTY CORP. v. CI9STY OF RYE 32 a 1�' .Y.2d 108 Cite ,49S N.Y.s.2d 321 (Ct.App• (61 N.Y.2d 481, 494, 474 N.Y.S.2d 699, 463 485 N.E.2d 986 on there N,E,2d 15 [absent exercise of discretion by 66 N.Y.2d 111 aat "any the Appellate Division so egregious as to �11FGL & L PROPERTY nee due % amount to an abuse of discretion as a mat- CORP., Respondent, .., .c sums," ter of law, its exercise of discretion is not the tem- k us The'factors listed by Appellants. reviewable by ])• ' to") and = the Appellate Division as the basis for its CITY OF RYE et al., App c periods reduction of the award to 25% make clear Court of Appeals of New York. 9; ion. The �f that there was no abuse of discretion as a Oct. 24, 1985. tier sup- matter of law. Nor was the Appellate Di- :G �hich de- vision required by Domestic Relations Law f s, 1 "to be § 236(B)(5)(g) to analyze each of the Property owner brought action seeking section factors stated in subdivision (5)(d) and give an injunction against enforcement of local "mainte reasons as to each,it being sufficient under zoning law. The Supreme Court, Special -is", both that it "set forth the Westchester County, Marbach, J., subdivision (5)(g) Term, appeal was than re- factors it considered and the reasons for its held the ordinance valid, and d' -appellate taken. The Supreme Court,Appellate Divi- 1's lump- decision" (Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 sion, 109 A.D.2d 814, 486 N.Y.S.2d 333, .he main N.E.2d 829). reversed, and appeal was taken. The f. telations arguments are ei- Court of Appeals,Meyer,J.,held that noth- Plaintiff's remaining provisions of Gener- ? . appeal, unpre- in in zoning enabling p ther not before us on this g plaintiff served or without merit. al City Law, historical preservation provi she stat sions of General Municipal Law nor land- M1¢ award [g� On plaintiff's appeal, the order of marks preservation provision of city code le distri- _' , the Appellate Division should be affirmed, empowered city to mandate the manner in stains no ) peal .. may be owned or held or to without costs. Defendant's cross aneve- which property y cd in lieu should be dismissed for want of agg impose upon the owner of a tractpurchasers 6s d of the :n ment, the modification made by the Appel- ing historic structures, or p A.D.2d `' properties neighboring the tract, the cost late Division having been in his favor. �4 ancement of the tissed 63 of rehabilitation or enh N.E.2d properties. N.Y.S.2d ` WACHTLER,C.J.,and JASEN?MEYER, p p i, the con SIMONS, KAYE, �,EgANDER and TI Affirmed. jblosutn TONE, JJ., concur in Per Curiam opinion. ' ` ward of On review of 'submissions pursuant to 1. Zoning and Planningc.-232 i -1d to be s section 500.4 of the Rules of the Court of Zoning laws are to be given strict con- d w lessened Appeals (22 NYCRR 500.4): on plaintiff's struction because they are in derogation of M1i 7age—in appeal, order affirmed, without costs. De- common-law rights.' atenance fendant's cross appeal dismissed, without 2. Zoning and Planning ca21 future. costs. There being no inherent power to enact appellate zoning or land use regulation, an ordinance 's award or local law provision for which legislativei my if it delegation of power cannot be found is w iscretion o SKtreunetRSYs1tM ultra vires and void. t' ,ter Pro ,. T 3. Zoning and Planning,8-S oedJo . fix' , Power to adopt zoning provisions 350, not rd appellate expressly forbidden by enabling authoriza- tion may be implied where there exists =the trial provisions the t al independent justification for p 4 t' within the spirit of the enabling legislation. -tor to hey' ' r, jauska,% 4 �� ji . 322 495 NEW YORK SUPPLEMENT,' 2d SERIES 66 N.Y.2d 111 f• 66 N.Y.2d 115 E' 4. Zoning and Planning a61, 63 impose upon the owner of a tract contain- i`•- which in seve Neither enabling provision for resi- ing historic structures, or purchasers of t:': injunction aga dential zoning in cities; McKinney's Gener- properties neighboring the tract, the cost `"' tion, a declar - al City Law § 20, subd. 24, nor section of rehabilitation or enhancement of the ultra vires, u 1,= containing cluster zoning authorization ap- properties. •The order of the Appellate Di- spot zoning a plicable to city, McKinney's'General City vision should, therefore, be affirmed, with "; well-considere Law § 37, empowered city to enact zoning costs. damages und« law requiring, inter alia,that lot.containing t,' ants moved f, ' two historic buildings have a minimum I ing the local area, remain in single ownership, buildings Plaintiff is the owner in fee of a parcel of wise dismissi not contain more than.three and six units, land situated in the City of Rye (City) of cross-moved f e'•, respectively, and that owner or purchasers approximately 22 acres on which are locat- k( . in its favor. of properties neighboring tract supply cost ed the Jay Mansion,'built in 1838 by Peter ). there were is- of rehabilitation or enhancement of the Jay, son of John Jay, the first Chief Justice ality requiring . .: properties. of the United States Supreme Court, and as a hybrid another building known as the Carriage zoning and hi, 5. Zoning and Planning«61 g g House, built around '1912 in the Colonial was not invab 6 Neither historical preservation provi- sions in section of General Municipal Law, Revival'style. There is some dispute be- ing and had . tween the parties concerning the historic or accordance w r" McKinney's General Municipal Law§ 96-a, landmark significance of the Carriage r' plan,and that t� nor landmarks preservation provision of g ': p <' House, r purposes o this opinion we n not lie with H but for fhi city code authorized city to enact zoning �:'• ' Defendants' law mandating that entire 22-acre district assume that both buildings have such Sig- •• remain in single ownership with developer nificance. It is unnecessary to detail the was, therefo. ti. negotiations carried on from 1979 until _ demonstrated to rehabilitate exteriors of two historic , reve�section 1983 between the City and plaintiffs prede• P buildings, and proscribing use of any new nomic benefit dwelling unit until that rehabilitation had cessor in title t and between the City and 1 been accomplished, thereby effectively re- . Plaintiff, and the various rezoning propos• cross motion ` als that were made during•those negotia ed to the Apt quiring that cost of rehabilitation be shared . by.owners in district of units other than tions, although a few pertinent and uncon its brief, fron buildings in question. tested facts developed during those negoti to the sec. ations are referred to below. fendants app When acquired by plaintiff's predecessor ' order a ed s Henry .Smith and James G.Fine White and denied s ry the property was zoned R-2,as were neigh- the section v Plains, for appellants. boring properties, some of which were _LlReter Gruenberger, Lesley E. Gold- used, however, for public. purposes or of- f" Appellate Di berg,.Robbie Narcisse and Theodore S. fice use under nonconforming uses. ferred only R-2 ' ` 2 833, Steingut, New York City, for respondent. zoning permits single-family detached ferre o homes on not less than one-half-acreplots, section, rever n - "invalid as it tsOPINION OF THE COURT and plaintiff's property would have accom- _11 latton of the MEYER, Judge. modated 38 such dwellings. In June 1983, 1 ty." (109 A. the City Council adopted Local Law No. 333.) We ag Nothing in the zoning enabling provi- 5-1983,which added a new section 197-13.2 consider the ( sions of the General City Law, the histori- to the City' Code creating the Alansten ': the zoning ev cal preservation provisions of the General Landmarks Preservation District (LPD-A). the City acte r Municipal Law or the Landmarks Preserva- As the revised zoning map'demonstrates, ' rshi tion provisions of the Rye City Code em- and defendants do not deny, the only prop- `+ late e ing inn the his powers the City to mandate the manner in erty zoned LPD-A was plaintiff's 22 acres. of the Geners which property may be owned or held or to Plaintiff then began the present action, •, marks Prese Code 'upon L 1. Title has apparently been transferred back to not moot the appeal(Pacific Blvd.Assoc V. City +• , the'predecessor by plaintiff, but the fact that of Long Beach, 38 N.Y.2d 766, 381 N.Y.S.2d 55, whether eons- there has been no substitution of parties does 343 N.E.2d 772). junction Wit: `A. a s MIN 66 N.Y.2d 115 FGL & L PROPERTY CORP. v. CITY OF RYE 323 ,F. Cite as 495 N.Y.S.2d 321 (Ct.App. 1985) r ,' which in seven causes of action sought an sions of the General City Law, empowered injunction against enforcement of the sec- the City to enact the section in its present tion, a declaration that 1114it is invalid as form. We, therefore, affirm. Via` ultra vires, unconstitutional, site specific, ; . f. spot zoning and not in accordance with a well-considered zoning plan, and money The section as enacted declares that in ` damages under 42 U.S.C. § 1983. Defend- order to provide for flexibility in the City's ants moved for summary judgment declar- zoning "so that the significant historic ing the local law constitutional and other- buildings, the Jay Mansion and the Car- wise dismissing the complaint. Plaintiff riage House, and site features which char- cross-moved for partial summary judgment acterize thi's site * * * are preserved for " in its favor. Supreme .Court held that the future and that new construction be there were issues concerning constitution- undertaken with care and consideration for 4 ality requiring trial, but that the ordinance, these 'features and the environment", the ' as a hybrid containing elements of both new district is adopted. Subdivision B es- vi fii zoning and historic preservation regulation, tablishes standards for the new district, '.A was not invalid as site-specific or.spot-zon- which include that "[t]he lot as approved ' ing and had not been shown not to be in shall have a minimum area of twenty-two accordance with the Cit 's comprehensive (22) acres and shall be and y �15remain in plan,and that the section 1983 action would single ownership"; that "[t]he exterior of not lie with respect to legislative action. the Jay Mansion and Carriage House shall f Defendants' motion for summary judgment be rehabilitated and the interiors converted was, therefore, granted unless plaintiff to residential use",for the Jay Mansion not �"i demonstrated at a plenary trial that the to exceed three units and for the Carriage ;f± p ry g ' 11 4� section prevented it from realizing any eco- House not to exceed six; that there be a } nomic benefit from its property. Plaintiff's trapezoidal view way 90 feet in width at cross motion was denied. Plaintiff appeal- the rear of the Jay Mansion and 300 feet in " Ey; ed to the Appellate Division, as limited by width at the southerly property line; that its brief, from Special Term's order except the new,dwelling units may not be occupied as to the section 1983 cause of action; de- until the exteriors of the Jay Mansion and 9' fendants appealed from so much of that the Carriage House have been restored and order as directed a trial on constitutionality the,interiors converted to residential use and denied summary,judgment declaring and available for occupancy and that a the section valid and constitutional. The bond be posted to assure such rehabilita- Appellate Division, 109 A.D.2d 814, 486 tion and conversion; and that the applica- 4 N.Y.S.2d 333, in a memorandum which re- tion for site plan approval be accompanied " ferred only to the zoning aspect of the b among other thins a draft condomin- i� Y g P Y, g g , section, reversed and declared the section ium offering statement together with a "invalid as it constitutes an improper regu- draft of an easement and/or agreement for lation of the form of ownership of proper- perpetual maintenance of the exteriors of ty." (109 A.D.2d, at p. 815, 486 N.Y.S.2d the Jay Mansion and the Carriage House. 333.) We agree that it is unnecessary to Neither the statutes authorizing enactment {`; }� g rY g ` consider the constitutional issues and that of zoning provisions nor those dealing with el the zoning enabling provisions under which historic landmarks empower the City Coun- t, the City acted do not authorize it to regu- cil to adopt a local law with such provi- ', late ownership, and hold further that noth- sions, nor does anything in the Landmarks y„ ing in the historical preservation provisions Preservation chapter of the City Code sup ' of the General Municipal Law or the Land- port its so doing. marks Preservation chapter of the City fo Code, upon both of which the City relies, A whether considered separately or in con- [1-31 Zoning laws are to be given a junction with the zoning enabling provi- strict construction because they are in der- 'f' U 5 324 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 115 t+. 66 N•Y.2 ogation of common-law rights (Matter of made with reasonable regard to the charac. _U17notes k 440 E. 102nd St. Corp. v. Murdock, 285 ter of buildings erected in each district,the a differ# N.Y. 298, 304, 34 N.E.2d 329; see, Matter value of land and the use to which it may property. !" of Frishman v. Schmidt, 61 N.Y.2d 823, be put, to the end that such regulations r minium 5,y 473 N.Y.S.2d 957, 462 N.E.2d 134). More- may promote public health, safety and wel- with th- f over, there being no inherent power to en- fare and the most desirable use for which that the t' act zoning or land use regulation, an ordi- the land of each district may be adapted ` or, if di nance or local law provision for which legis- and may tend to conserve the value of k no indep lative delegation of power cannot be found buildings and enhance the value of land t`:' it of Sul: is ultra vires and void(Matter of Kamhi v. throughout the city." (Emphasis supplied.) which t Planning Bd., 59 N.Y.2d 385, 465 N.Y.S.2d Nothing in that subdivision speaks to ownersh 4' 865, 452 N.E.2d 1193). Power to adopt ownership rather than use, and while it Nor d provisions not expressly forbidden by the does not expressly forbid provisions relat, l contains enabling authorization may, however, be ing to ownership, the City suggests noth- i; applicab- implied where there exists independent us- �1 of p p ing within the spirit of zoning legislation such jus tification for provisions within the spirit of generally or this subdivision specifically ;� Planninl the enabling legislation (Collard v. Incor- that offers justification for implying such sonable porated Vil. of Flower Hill, 52 N.Y.2d 594, power. Indeed,the cases are legion, in this a provided 602, 439 N.Y.S.2d 326, 421 N.E.2d 818). State and elsewhere, which hold that"zon- t; land not w [41 The enabling provision for resi- ing ` ' ` in the very nature of things has district r, dential zoning in cities is General City Law reference to land rather than to owner what th6 § 20(24).2 That subdivision empowers a (Vernon Park Realty v. City of Mount ': Planninl city "To regulate and limit the height, bulk Vernon, 307 N.Y.493, 500, 121 N.E.2d 517) ; appropri and location of buildings hereafter erected, and that it is a "fundamental rule that ,', nance (i to regulate and determine the area of zoning deals basically with land use and N.Y.2d yards, courts and other open spaces, and to not with the person who owns or occupies 4i N.E.2d regulate the density of�16population in any it" (Matter of Dexter v. Town'Bd., 36 ;il, town, 3: given area, and for said purposes to divide N.Y.2d 102, 105, 365 N.Y.S.2d 506, 324 ( the sec` the city into districts. Such regulations N.E.2d 870; accord, Matter of Weinrib v, E', sates ar. shall be uniform for each class of buildings Weisler, 27 N.Y.2d 592, 313 N.Y.S.2d 407, deviatiot throughout any district,but the regulations 261 N.E.2d 406, affg. 33 A.D.2d 923, 307 1; upon ap in one or more districts may differ from N.Y.S.2d 603; Allen v. Town of N. Hemp- accommo x- those in other districts. Such regulations stead, 103 A.D.2d 144, 146, 478 N.Y.S.2d f' houses ( 1 shall be designed to secure safety from 919; North Fork Motel v. Grigonis, 93 opment .fire, flood and other dangers and to pro- A.D.2d 883, 461 N.Y.S.2d 414; see, Matter ,. ownersh mote the public health and welfare, includ- of Park W. Vil. Assoc. v. Abrams, 65 sions tl ing, so far as conditions may permit, provi- N.Y.2d 716, 492 N.Y.S.2d 27, 481 N.E.2d implied sion for adequate light, air, convenience of 567). Most of the out-of-State cases hold, of access, and the accommodation of solar en- as did the North Fork Motel case, that a i ergy systems and equipment and access to zoning ordinance cannot be used to exclude h [5] A sunlight necessary therefor, and shall be a condominium 3 The City correctly of the 2. Subdivision 25 authorizes regulation and re- (387 Mass. 351, 439 N.E.2d 788); Bridge Park exist, th striction of trades and industries and,therefore, Co. v.Borough of Highland Park(113 N.J.Super, the histo - is not a source of power for the local law under 219,273 A.2d 397); Graham Ct.Assoc. v. Town consideration. In any event, it provides no Council(53 N.C.App. 543, 281 S.E.2d 418); see, also rec greater support for Local Law No.5 than subdi- McHenry State Bank v. City of McHenry (113 x hos Re.. vision 24,for it authorizes no more than control Ill.App.3d 82, 68 I11.Dec. 615, 446 N.E.2d 521); 5; N.H. 4t of where'buildings, designed for specific uses' Maplewood Vil. Tenants Assn. v.Maplewood ViL a: Cossell, t. may be located and of "the uses for which (116 N.J.Super. 372, 282 A.2d 428); but see, nald';z buildings may not be erected or altered." Goldman v. Town of Dennis(375 Mass. 197,375 �p Zoning 3. City of Miami Beach v.Arlen King Cole Condo- N.E.2d 1212); Griffin Dev. Co. v.City of Oxnard „ 4. The t• minium Assn. (302 So.2d 777 [Fla], cert denied (39 Ca1.3d 256, 217 Cal.Rptr. 1, 703 P.2d 339 !• (§ 281) 308 So.2d 118); CHR Gen. v. City of Newton [1985]). The general proposition is, however, what rr, f s N ri - �t oil 1d 66 N.Y.2d 118 FGL & L PROPERTY CORP. v. CITY OF RYE 325 4! Cite as 495 N.Y.S2d 321 (Ct.App. 1985) J117notes that exclusion of condominiums is tained in section 96—a and article 5—K of a different proposition than requiring that the General Municipal Law or the Land- property in a given area be held in condo- marks Preservation provision of the Rye minium ownership. However, we agree City Code (ch. 117). with the Appellate Division's conclusion Section 96—a of the General Municipal i :s that the distinction is without a difference, Law reads as follows: "In addition to any or, if difference there is that there exists no independent justification within the spir- power or authority of a municipal corpora- tion it of subdivision 24's zoning to regulate by planning or zoning laws provision from +' ). which the power to require condominium and regulations or by local laws and regu- 'i{ ownership can be implied. lations, the governing board or local legis= lative body of any county, city, town or Nor does General City Law § 37, which village is empowered to provide by regula- contains the cluster zoning .authorization tions, special conditions and restrictions for applicable to cities such as Rye, provide the protection, such justification. Under its provisions the p enhancement, perpetuation Planning Board is authorized to make rea- and use of.Ltsplaces, districts, sites, build- 'i sonable changes in the zoning regulation, ings, structures, works of art, and other provided that the average density of the objects having a special character of special P land not be greater than is permitted in the historical or .aesthetic interest or value. Y district in which the land lies. Although Such regulations, special conditions and re- ; ? E strictions may include appropriate and rea- what the legislative body can authorize its Planning Board to do, it can do itself by sonable control of the use or appearance of appropriate amendment of its zoning ordi- neighboring private property within public q' nance (see, Cummings v. Town 13d., 62 view, or both. In any such instance such j N.Y.2d 833, 834, 477 N.Y.S.2d 607, 466 measures, if adopted in the exercise of the .y'. N.E.2d 147; Rodgers v. Village of Tarry- police power, shall be reasonable and ap- ,! toxrn, 302 N.Y. 115, 123, 96 N.E.2d 731), propriate to the purpose, or if constituting ;j the section contains nothing which indi- a taking of private property shall provide l s cafes an intention to do more than allow for due compensation, which may include deviation from fixed dimensional zoning the limitation or remission of taxes." Arti- ` upon application of the,owner in order to cle 5—K is broader in scope,covering histor- accommodate group houses, apartment is preservation not only by regulation but houses or stores.4 Power to require devel- by governmental acquisition as.well. Sec- opment of a 22-acre parcel in condominium tion 119—bb(4) defines "historic preserva- ownership cannot be implied from its provi- tion" to mean "for the purposes of this lions, therefore, any more than can it be article and notwithstanding any other pro l f.i implied from General City Law § 20(24). vision of law, the study, designation, pro- tection, restoration, rehabilitation and use B of buildings, structures, districts, areas, t [5) Authority to enact section 197-13.2 sites or objects significant in the history, of the Code of the City of Rye does not architecture, archeology or culture of this exist, therefore, unless it can be found in . state, its communities, or the nation." The the historical preservation provisions con- operative provisions of the article are con- `( also recognized in noncondominium cases(Vla- materia (see, Delaware Midland Corp. v. Incor- hos Realty Co. v. Little Boar's Head Dist., 101 porated Vil. of Westhampton Beach, 39 N.Y.2d V.H. 460, 146 A.2d 257; County of Fayette v. 1029,387 N.Y.S.2d 248,355 N.E.2d 302,affg on CosseI4 60 Pa.Commw.202,430 A.2d 1226; Fer- opn at Special Term 79 Misc.2d 438, 359 N.Y. nald's Appeal, 17 Pa D &C 2d 291; Olevson v. S.2d 944), the City's authority is not enhanced, , Zoning Rd., 71 R.I. 303,44 A.2d 720). for both speak to the "development of land in such a manner as to promote the most appropri- ate The cluster provisions of the Town Law {§ 281)and the Village Law(§ 7-738)are some- ate use of land". what more detailed, but even if read in pari I ti' 77 326 495 NEW YORK SUPPLEMENT, 2d SERIES 66 N.Y.2d 118 tained in section 119—dd, which is set forth of the Jay Mansion and the Carriage in full in the margin.' House, proscribe the use of any new dwell- _U190f importance to the present issue is ing unit until that has been done, thus the fact that the regulation, special condi- effectively requiring that the cost of reha- r tion or restriction by which section 119— bilitation be shared by owners in the dis- dd(1) authorizes control of private property trict of units other than the Jay Mansion is "for the protection, enhancement,perpet and the Carriage House, and by dictating uation and use of places, districts, sites, condominium ownership of the entire dis- buildings,structures". Nothing in the sub- trict impose the cost of maintenance of the i division speaks to regulation of ownership. exteriors of the Mansion and the Carriage 4 Noteworthy also is the fact that though House upon owners of such units as well. i section 119—bb(4) refers to "restoration" The right to impose reasonable controls and"rehabilitation",those words are not to on the use and appearance of neighboring be found in section 119—dd(1), presumably private property p p rty within public view, given ;a because it was intended to permit a munici- by General Municipal Law §§ 96—a and pality acting under section 119—dd(3) after 119—dd(1),cannot be.stretched to cover pay- acquisition of a fee or lesser interest to ment of restoration and maintenance costs, restore and rehabilitate historic buildings ' for such a construction, which would im- t and sites, but not to permit the municipali- pose those costs upon .every unit in the ty to impose an obligation to restore or district,not just those"within public view," rehabilitate such buildings or sites as re- would render meaningless the limitation in- main in private ownership. Here the Code tended by.those words which appear in sections creating the Alansten Landmarks both sections. Yet there is no question Preservation District not only mandate that that such was the Council's intention,.for the entire 22-acre district remain in single its findings with respect to the final envi- ownership but also impose upon the devel- ronmental impact statement flatly stated oper the duty of rehabilitating the exteriors that "[o]nly under [condominium] owner- 5. The section, entitled"Local historic preserva- otherwise,acquire the fee or any lesser interest, x. tion programs,"reads as follows: development right,easement,covenant or other "In addition to existing powers and authori- contractual right necessary to achieve the pur• ties for local historic preservation programs in- poses of this article, to historical or cultural eluding existing powers and authorities to regu- property within its jurisdiction. After acquisi- late by planning or zoning laws and regulations tion of any such interest pursuant to this subdi- or by local laws and regulations for preserva- vision,the effect of the acquisition on the valua- tion of historic landmarks and districts and use tion placed on any remaining private interest in r of techniques including transfer of development such property for purposes of.real estate taxa- rights, the legislative body of any county, city, lion shall be taken into account. town or village is hereby empowered to: "4. Designate, purchase, restore, operate, "1. Provide by regulations,special conditions lease and sell historic buildings or structures. and restrictions for the protection, enhance- Sales of such buildings and structures shall be ment, perpetuation and use of places, districts, upon,such terms and conditions as the local sites, buildings, structures, works of art and legislative body deems appropriate to insure the other objects having a special character or spe- maintenance of the historic quality of the build- ' cial historical, cultural or aesthetic interest or value. Such regulations,special conditions and ings and structures,after public notice is appro- restrictions may include appropriate and rea- priately given at least thirty days prior to the sonable control of the use or appearance of anticipated date of availability and shall be for neighboring private property within the public fair and adequate consideration of such build- view,or both. ings and structures which in no event shall be : "2. Establish a landmark or historical preser- less than the expenses incurred by the munici• ; vation board of commission with such powers pality with respect to such buildings and strut- as are necessary to carry out all or any of the tures'for acquisition, restoration, improvement authority possessed by the municipality for a and interest charges. i historic preservation program,as the local legis- "5. Provide for transfer of development lative body deems appropriate. rights for purposes consistent with the purposes fS "3. After due notice and public hearing, by of this article." purchase, gift, grant, bequest, devise, lease or ; t.. r1 c' r i� ' Et 1 tt 66 N.Y.2d 121 FGL & L PROPERTY CORP. v. CITY OF RYE 327 << Cite as 495 NX.S.2d 321 (Ct.App. 1985) ship can the cost of maintaining the exteri- out violating the Constitution, nor need we ?' ors of the historic buildings be shared reach the question whether as applied to _L,Zoby all the homeowners", and that theme plaintiff's property section 197-13.2 is con- is repeatedly emphasized in the City's brief stitutional. We hold rather that in light of E: to this court. While that may be true, the well-recognized rule that statutes are clearer authorization to enact such provi- to be construed so as to avoid constitution- sions than .are contained in the General al issues if such a construction is fairly Municipal Law sections referred to is es- possible (Matter of Peters v. New York sential before section 197-13.2 can be up- City Hous. Auth., 307 N.Y. 519, 527-528, '' }; held against the argument that it was be- 121 N.E.2d 529; see, People v. Felix, 58 i' yond the City's power to enact: N.Y.2d 156, 161, 460 N.Y.S.2d 1, 446 f Noteworthy also, in view of the require- N.E.2d 757; McKinney's Cons.Laws of ment that the Mansion and Carriage House N.Y., Book 1, Statutes § 150), the General be completely restored before any other Municipal Law sections under consideration unit can be occupied is the absence from as presently written should be construed � not to authorize imposition of restoration' the General Municipal Law sections of au- thority to require restoration, as distinct costs solely upon plaintiff and purchasers from maintenance. Landmark and historic from plaintiff or maintenance costs upon purchasers of properties other than those preservation laws normally prevent altera- to be preserved. `•+ i tion or demolition of existing structures s unless the owner can demonstrate hardship C s (Penn Cent. Transp. Co. v. City of New ' York, 42 N.Y.2d 324, 330, 397 N.Y.S2d In view of the distinctions between zon- ing regulation, historic district reg ulation 914,366 N.E.2d 1271, affd. 438 U.S. 104 i dit , 98 f . and landmark regulation recognized in S.Ct. 2646, 57 L.Ed.2d 631), but if they Penn Cent. Transp. Co. v. City of New ;( place an undue and uncompensated burden a' on the individual owner may be held uncon- York, 42 N.Y.2d, at p. 330, supra, 397 +, stitutional (Lutheran Church in Am. v. N'Y•S.2d 914, 366 N.E.2d 1271, we note City of New York, 35 N.Y.2d 121, 129, 359 that chapter 117 of the Rye City Code deals + with landmarks preservation and is re- s N.Y.S.2d 7, 316 N.E2d 305) because "it forces the owner to assume the cost of ferred to in section 197-13.2(C)(1). As y chapter 117 read when the Alansten Pres- providing a benefit to the public without recoupment"(French Investing Co. v. City ervation District section was enacted, land- mark designation required the property of New York, 39 N.Y.2d 587, 596, 385 N.Y. , 7, owners consent, but effective December 7, S.2d 5, 350 N.E.2d 381; see, Dunham, A Legal and Economic Basis For City Plan- 1983, chapter .117 was amended to remove ping, 58 Colum.L.Rev. 650, 665). Here, the consent requirement and provide for T society at large bears no part of the cost of landmark designation by the City Councilalone 6 and .effective July .18, 1984, the r; restoration, it is rather to be borne initially Alansten 22-acre site and the exteriors of by plaintiff and ultimately by the purchas- the Jay Mansion and of the Carriage House ?, ers of dwelling units within the district. were designated as protected. Nothing in Yet the City's expert appraiser agreed that that designation or in the restoration costs of approximately$627,000 p g erosions of chapter 117 which concern only mainte- s` for the Jay Mansion and $588,000 for the nance of a landmark and the circumstances Carriage House would be required. under which it can be demolished, provides We do not hold that the General Munici- support for the provisions of section 197— pal Law sections could not be drafted to 13.2 requiring that the Alansten property ' .t impose restoration costs on an owner with- be held in single ownership in condominium 6. On June 18, 1984, the Alansten 22-acre plot before Supreme Court,Westchester County,in a r was so designated. The constitutionality of the declaratory judgment action entitled DGM Part- { Ft' amended version of the chapter is awaiting trial Hers-Rye,v. City of Rye. y. 328 495 NEW YORK SUPPLEMENT, 2d SERIES 66.N.Y.2d 121 form or the .imposition of restoration, as er to add request for reductions in unP ro- distinct from maintenance, costs upon the tested assessments on improvements. property owner and ,ultimately upon pur- Affirmed. chasers of dwelling units within the dis- trict. Wachtler, C.J.;filed dissenting opinion in which Meyer and Kaye, JJ., concurred. For the foregoing reasons, the order of the Appellate Division declaring Rye City Code § 197-13.2 invalid is affirmed, with Taxation e-493.70) { costs. Court was without authority to grant amendment to petitions alleging error in WACHTLER, C.J., and JASEN, SI- assessed value of land only,. based on ro- MONS, KAYE, ALEXANDER and TI- tests similarly limited, to permit taxpayer TONE, JJ., concur. to add request for reductions in unprotest- ed assessments on improvements. i. Order affirmed, with costs. i i ' � c Cw _pAdolph Koeppel, Anne J. Del Casino o i Kcr HUMs[x sysrEM and Donald F. Leistman, Mineola, for ap- a pellant. Edward G. McCabe, Co. Atty. (Joshua A. P . Elkin, Mineola, of counsel), for respon- dents. p 485 N.E.2d 993 L OPINION OF THE COURT 66 N.Y.2d 122 .� c JW2In the Matter of STERLING SIMONS,''Judge. ESTATES, INC., Appellant, Petitioner is the owner of real property :: f4 V. in Valley Stream, New York, known as the o: BOAftD OF ASSESSORS OF the Green Acres Shopping Center. It has insti- a: tuted several proceedings pursuant to Real f 4; COUNTY OF.NASSAU et al., Property Tax Law article 7 seeking a re- A Respondents. duction in the land assessments on the sev N parcels making Court of Appeals'of New York. eral P g up the shopping center i; A, property for the tax years 1967/1968 �;`, m Oct. 24, 1985. through 1977/1978. In 1982 it moved to cJ. amend the petitions requesting, along with , Bc other relief, permission to allege error in `'' N. Taxpayer moved to amend petitions the assessed value of lots_ not previously `. filed in tax certiorari proceedings to-in- protested and in the assessed value of im. s' crease amount of claimed reductions on provements on lots that had been protest- (F fis }T basis that assessments were unequal, ex- ed. Special Term denied that relief, hold• ' cessive, or otherwise valid. The Supreme ing that it lacked jurisdiction to permit F Sol Court, Nassau County, Farley, J., denied amendment of the petitions to add a chal- . . me motion, and taxpayer appealed. The Su- lenge to lot.or improvement assessments Pell, preme Court, Appellate Division, 104 which had not been rotested the statuto P Previously wh A.D.2d 599, 479 N.Y.S.2d 381, affirmed. during ry period for administra- �; su• On appeal y permission of the Appellate' tive review. ' The Appellate Division of- , ' se. Division, the Court of Appeals, Simons, J., firmed, with one judge dissenting (104 tax held that Court was without authority to A.D.2d 599,,479 N.Y.S.2d 381). On this { ble t grant amendment to petitions alleging er- appeal petitioner presses only the court's in(; ror in assessed value of land only, based on ruling denying amendment to add a chal- ha: protests similarly limited,to permit taxpay- lenge to the assessed value of the improve- put is kLgg, b• .nvn. n :w .... ... .77 F r1k rl rF, Of �i'�,tr�} ��71,+ F �tr f�ysh ski/��'al k.•hY,ajt elnif�"`} iS� yy §4 '3 1 it i y (.. t �� , +. } iT51 r n.i yirS,i'v.kgrrljP F�v+ 71•7r �ip�,�i'S^r.7i.l;t ( p i�tr i t,,fix F ,r 7 _ - s ,�: r, sf t7 •f �: 1.rr1 fa •'"f^ C ' - act t, <.c x r y s^,agdE'��F� „t, :i w',• � - r i.] .4 ;_'rp, .n,p, i. ;s •�' �, _«- .a..,, t, 7. 11.uxCfi5v i � q SUMMIT SCHOOL v. NEUGENT 77 h t Cite as,App.Div.,442 N.Y.S.2d 73 ducted on the premises which,are the sub- school, the details of the operation of,the ls. ject of the special permit (Matter of Com- educational processes of the institution, and . f` munity Synagogue v. Bates, 1 N.Y.2d 445, also equally improper and beyond its power # � 154 N.Y.S.2d 15, 136 N.E.2d 488; Matter of to impose such conditions as here by an Schlosser v. Michaelis,,18 A.D.2d 940, 238 agreement with the applicant. N.Y.S.2d 433; Matter of Oakwood Is. Yacht u; Club v. Board of Appeals, 32 Misc.2d 677, [6] To the extent that.appellants may } !' 221 N.Y.S.2d 907; Matter of Long Is.Light. be properly precluded by a prior waiver of a y` r Co. v. Voehl, 27 Misc.2d 943, 211 N.Y.S.2d statutory or constitutional right to chal- ; 576, affd. 15 A.D.2d 512,222 N.Y.S.2d 589; lenge the official action of the municipality ;, ' tfR^ Matter 'of De Ville Homes w: Michaelis, in relation to zoning,such waiver is ineffec- tual to foreclose such attack where the Sup., 201 N.Y.S.2d 129; Bernstein v. Board ere f of Appeals, V1I. of Matinecock; 60 Misc.2d right concerns a matter of public policy(see / Brous v. Town of Hempstead, 272 App.Div. 470, 302 N.Y.S.2d 141, app. dsmd. 31 A.D.2d 31, 69 N.Y.S.2d 258). 650, 297 N.Y.S.2d 702, mot: for Iv.* to app. x, den. 23 N.Y.2d 646, 299 N:Y.S.2d 1025, 247 , By their agreement, the appellants have N.E.2d 498). effective) waived all objections to the h '= Y q objections tad Where as here the special "conditions subsequent",except those under pe ' permit con- i tains specific conditions which have been which the municipality sought to assume ;;«• the subject matter of an agreement be- control over some aspects of the educational tween the Board of Appeals and the appli- process of the school, an effort for which it cant, such conditions must.also pertain ex- was neither professionally equipped nor le- elusively to the zoning,,use-of the land and gaily authorized to undertake. ,. r. not to the.details of the operation .of the (7] Those "conditions subsequent" business,to be thereon conducted, which, in which may.intrude upon the educational wM ` this case,.concerns the teaching,of Nandi- processes of the appellants as opposed to { ' capped children with learning disabilities, their use of real property, are contrary to pursuant to a constitutional mandate im- public policy and may not be the subject , y posed, upon the State to "p , po provide for the matter of a.waiver. tmaintenance and support of.a system of Our inquiry is now focused upon many 1, free common schools, wherein all the chil- clauses of the "conditions subsequent" des- dren of this state may be educated. (N.Y. ignated "D'; which, for the reasons herein- , ' 3 Const., art. XI, § 1; emphasis added.) , . below stated, suffer such infirmity. It is [5) We are dealing here with a private there provided as follows: school teaching enterprise;,authorized and ;"D. Students will be under.18 years of w zxn gt operated under contract to carry out the age and will be limited to those with ° State's obligation to provide education for so-called 'Learning Disabilities'; regular ' ` 4. such 'handicapped children'with'learning educational classes will be held during they+. 0 a, disabilities, pursuant to article 89(§§4401— months of September through June, in- f 4409) of the Education Law, and it would elusive, on Mondays through Fridays, in- not only be contrary to."the.strong public elusive, from approximately 9:00 A.M. to a#k policy of the State which favors the educa- approximately 4:00 P.M.; any athletic or tion of all children, however handicapped" recreational activities shall be of second- (Rogers v. Association for Help of Retarded ary importance and will be held either t Children,308 N.Y: 126, 132, 123 N.E.2d 806, indoors, or sufficiently distant from the emphasis added; Matter of.. Wiltwyck north and south boundaries of the proper- School for Boys v. Hill, 11 N.Y.2d 182, 227 ty,, both, to the end that neighboring ( ' N.Y.S.2d 655, 182 N.E.2d 268, supra), and owners. will not, be disturbed by loud ` in excess of the legislative power conferred noise or otherwise; no summer camp or rFrr' upon a municipality, to impose, as a condi- ' ; vacation activities of any kind will be %i tion of a special use permit for a private held or maintained at any time on the ryry' • 4 L� ��f {. i;r 'S i P O IL;RSA,'i NC. v;'.VILLAGE'.OF NEW'PiiLTZ 479 ;S the iu Sss N.Y.g 476'(A.A.3 Dept 1990) xecutive Law §§ 370— plied) (Executive Law,former,§ 383, re- .,fies;.as,multifamily dwellings,:into,.Condo- . e Multiple 'Residence :pealed liy,L 1981; ch.-707,'§ 12). miniiims;also considered multifamily dwell= o certificates of occu- ` , The.certificates of,occupancy Issued in.con ings,,it goes beyond the Village's enabling residence Law §.302), s' nection%iwith;plaintiff's.apartment.complex` ;authorization and•therefore;the local law.is iunicipalltles"to'-°enact 1 laws.'(Multiple Resi- from 1963 ao 1969., proclaim that.the.build ultra vires.and,void.(eee; FGL,& L Prop: t mgs j conform[ed] to all_;of the. require- Corp of Rye, supra, 66 N.Y.2d at mentsA of the�apphcahle,provisions_of,.the .115„ 495..N.Y.9.2d 321; 485; N,E.2d 986; the'third cause of ac- �, law exiatin as "of the 'date of issuance tNorth,Fork-Motel;v :Grigonw, supra): ts predicate that the ' (see, 4 Rathkopf, The Law of Zoning and the-power,to enact Planning;§ 49 07,'�at 49j41) Local`'Law MAHONEY. PJJ, and MERCURE,rJ, ecause It"contravenes r4 rNo 21 does;>�ot detract fronvIliat'assur- ;concur.,=, ultipie Dwelling Law i. ance, for%it re4u&9 thb-.%uilding'inspector :sidence..Lxw'§ 302(5) to.7etefinitie=ifi the structure:aneets`rurrent KANE J, concur part and" )rmer § 383. Undeni- builaing;'consti uctiontl.laws .Although".tine. `dissents in.part 'in an opinion. of establish local laws ' ' already-promiflgated certificates attest;that Order modified, on the 'law, without he State Constitution f thelcomplex Inet ibuilding..coderegulations ; costs, "by"reversing so much thereof as w", 'defined 'as laws extant at.'tbet iiine-.they,were Issued, there denied plaintiff's motion for'sunimary judg- o' all 'villages (N,Y: ,, is no guarantee that they meet today' ment •plaintiff.granted,summary judgment ;[3][c]; [d][1];` 'Munici- standards'(see,1xci;i;at 49,3$) For example, on its,first cause oft action and defendant's M. § 10[1][ii][a][12]), the New fork 3Building"Code was repealed } effective Janua l' Local Law No. 21 declared ultra vires and rue, however;' Is 'not `', 1984, and replaced by ::void, and, as so modified,'.affirmed. of`these three'stat the,,currentt New:York`Uniform'Fire Pre- .. � vention�and Building'Code Act, which:;be- , . - '• ' " came effective Jul 21 1981 (L.1981� ch. KANE, Justice (concurring'in part'and w y.. "_ Dwelling .Law;, 707; §§ 12,` 20). Y Local Law"No. 21's're- dissenting in part) _ ,, .. 4. •aw.adverted to,pro= quirement`that plamtifYs buildings now In respectfully dissenting, I`note`my`con- �n an individual pur- ti� ,. meet current bui ing'tand fire'regulations currence with the majority's, reasoning as elling relies.ori a pre ; does not offend the Executive Law former to the menta of plaintiWs second and third :ate of.occupancy,,no § 383 guaranteecauses'of action. In my.view,.however,the be advanced that the. 3< C5l There is,however,`merlt to the com- ordinance Is a legitimate exercise'of the arm to the provisions "plaint ini3ofar as the first caust� of action is village's`police,power„and I,would, there- �pters of those laws { : concerii'ed;for a§`plaintiff`rightlysr'.ggests, . fore, affir►n Supreme Court's dismissal of f the certificate"(see, la' the`Village:~doe's'riot have the legislative plaintiff's first and second causes of action. w §.301[5]; ,Multiple power to regulate the convers�on'of proper- , ."To'be sure,:,a:,Village ordinance enacted __51). These sections ty 1 ownership'4hi ch does' n`of involve an under the police power must bear a reason- the dwelling"was not alteration iii the Downer's:use of the'proper- able connection"to the'public health, com- ;,ose laws.when the jz ty •`.Municipalities have no'inheient capaci- ''fort,, safety and welfare (D Angelo .v. d; Local Law No' 21• ty'to mandate'the`manner:in_which proper Cole, 67 N.Y.2d 65, 69, 499 N.Y.S.2d 900, contrary, t*y.may be owndd or,hel&(FGL:&,L Prop. 490 N.E.2d. 819; see,. =Village'• Law Corp v',City,of Rye, 66.N.X.2&411 113, §`4-412[1]) I agree.:"with'the.majority local'.`law contradict: 495`;N Y S.2d 321 `485 N E 2d 986. :The that; absent.a`dele ation of § 383:,• That statute 1�:�= ) Y 8 power, a vil- r must acquire such;power;from 'the'State, ;lage"'may,riot mandate;the manner in which Absent such a,dele tion'of �' roe y ( , irate .of. occupancy 4 :nfci ah power,_a,mu- property,rty. ma be owned' see` FGL &:;L p tyreannot'employ a zoning ordinance .`Prbp.`Corp V. City of Rye,:66:N.Y.2d-ii1, mil set aside or vacat to exclude`>'or,di:ieriminate.;against.the,con- 113;'495 N.Y.S.2d 321, 485 N.k2d .986). review or a courE of t dominiunij form,of o ownership;(North Fork :'However,the clear legislative:target of the con, be and remain '�" Motel v�Grigon93 A.D.2d 883, 461,N.Y. r'ordinante'at issue here.is-;the condition of ve upon all state ands sS 2d 414) i'As)�,o`cal Law No 21 encumbers -.the;property.at the time bf.conversion; not as .to all matters ; !sponsors, ;effoi�s to convert apartments, its form-'of ownership The encumbrance ,d no'order; direction' r'i which the Vlha a zoning ordinance cla'ssi directed:at'conversion,is im.m view, inci- variance therewith + g g - Y , : - kMr •Thb certiflcate6 of occupancy issued io plaintiff Extxtitive Law`piovision was repealed effective sued ,by Any Other I, jg jn{-1986, 1987 and;,1988 are,.irrelevant for the ``in 1984' gency(emphasis su (L 198f,,ch 707, g§ 12, 20).' P' t� purposes ofrgthis argtimenf for the :applicable Yr � AT'TZRNE�LA ... 828 FRONT STREET,P.O.BOX 803 GREENPORT,NY 11944_ (516)477-1016 J.AN '791991 January 8, 1991 Southold Town Board of 'Appeals Southold Town Hall Main Road Southold, New York 11971 RE: APPLICATION OF MICHAEL CHOLOWSKY Gentlemen: Enclosed herewith please find Memorandum of Law with regard to the subject application. If you have any questions, please feel free to cont t me. Very tru y , J. in I c ughl ' n JKM/lmt enclosure HAND DELIVER § 100-31 ZONING § 100-31 ` stand in existence on the effective date of this subsection must, within one (1)year from such date, comply with the provisions hereof. (b) The keeping, breeding, raising and training of horses,domestic animals and fowl(except ducks)s on .r lots of ten (10) acres or more. C (c) Barns, storage buildings, greenhouses (including z plastic covered) and other related structures, provided that such buildings shall conform to the , yard requirements for principal buildings.- Buildings, structures and uses owned or operated by the Town of Southold, school districts, park districts and fire districts. r 42 B. Uses Permitted by special exception by the Board of Appeals. wu, The following uses are permitted as a special exception by the - Board of Appeals, as hereinafter provided, and, except for the _•...__ uses set forth in Subsection B(15) hereof, are subject to site plan approval by the Planning Board: - (1) Two-family dwellings not to exceed one(1)such dwelling on each lot. -. (2) Places of worship, including parish houses(but excluding a rectory or parsonage, which shall conform to the requirements for a one-family dwelling), subject to the following requirements: (a) No building or part thereof shall be erected nearerthan fifty(50)feet to any street line and nearer than r^ - twenty (20) feet to.any lot line. (b) The total area covered by all principal and accessory buildings shall not exceed.twenty percent (20961) of the area of the lot. (3) Private elementary or high schools, colleges and other educational institutions, subject to the following require- ments: =- 6 Editor's Note: See also Ch.41,Ducks . 10039 2-25-89 _ F .nn:f' .a r C. 'F S � t':.. 'tr-0'7fia'�•. .Xx. ,:,.. .v}, , t : t i t § 100-31 ZONING § 100-31 § 100-31 SOUTHOLD CODE § 100-31 f An hospital or sanatorium shall No such use shall occupy a lot.with an area,of less (f) y nursing home, than three (3) acres. meet the following standards: = 3 [1] .All buildings shall be of fire-resistive construe-, , (e) The direct source, of all exterior lighting shall be tion. shielded from the view of surrounding residential f lots. [2] All such uses shall be served by adequate water and sewer systems approved by, the Suffolk (8) ' Children's recreation camps organized primarily for y County Department of Health. seasonal use and subject to the following requirements:. . � J [3] Patients suffering from communicable diseases (a) No building, tent, activity area or recreation facility shall not be permitted in any nursing home or shall be less than two hundred(200)feet from any lot ;`; sanatorium. (Communicable diseases are de- line, and any such building, tent, activity area or fined by the Sanitary Code of the Public Health recreation facility shall be effectively screened Council of the State of New York.) therefrom as required by the Planning Board. [4] Eight thousand (8,000) square feet of lot area. . Buildings intended for use as sleeping quarters shall _ shall be provided for each patient bed. be not less than thirty (30) feet from each other, except tents,which shall be not less than ten(10)feet (6) Public utility rights-of--way as well as structures and apart. other installations necessary to serve areas within the town, subject to such conditions as the Board of Appeals (b) The minimum lot area shall be not`less than ten may impose in order to protect and promote the health, thousand (10,000) square feet for each cottage; tent . safety,appearance and general welfare of the community or other principal building and not less than three . J. and the character of the neighborhood in which the. thousand (3,000) square feet of land area shall be proposed structure is to be constructed. provided for each person accommodated in the buildings or tents on the premises. (7) Beach clubs, tennis clubs, country clubs, golf clubs, public golf courses and annual membership clubs (c) All outdoor lighting shall be arranged and/or . catering exclusively to members and their guests and j shielded to eliminate the glare of lights toward accessory playgrounds, beaches, swimming pools, tennis nearby residential lots, streets or other public courts,recreational buildings and maintenance buildings, + facilities. subject to the following requirements: (d) The sound level of all outdoor public-address systems " (a) No building or part thereof or any parking or shall not exceed the intensity tolerable in a residen- loading area shall be located within one hundred tial neighborhood. . (100)feet of any street line or within fifty(50)feet of any lot line. ! (9) Farm labor camps,subject to.the following requirements: (b) The total area covered by principal and accessory .(a) All farm labor camps on farms shall be construed in buildings shall not exceed twenty percent (20%) of conformance with applicable laws and shall not be the area of the lot located nearer to any other residence than the ( residence of the employer, except by specific review c) Such use shall not be conducted for profit as a , an business enterprise. d approval of the.Planning Board. 10042 2-2b-89 10041 2-25-89 § 100-31 SOUTHOLD CODE § 100-31 § 100-31. Use regulations.[Amended 344-89 by L.L. No.3-19891 In A-C, R-80, R-120, R-200 and R-400 Districts, no building or premises shall be used and no building or part of a building shall be erected or altered which is arranged,intended or designed to be used, in whole or in part, for any uses except the following- A. Permitted uses. (1) One-family detached dwellings, not to exceed one (1)" dwelling on each lot. (2) [Amended 5-23-89 by L.L. No. 8-19891 The following agricultural operations and accessory uses thereto, including irrigation, provided that there shall be no storage of manure, fertilizer or other odor- or dust- producing substance or use, except spraying and dusting to protect vegetation, within one hundred fifty(150) feet —+ of any lot line: (a) The raising of field and garden crops, vineyard and orchard farming, the maintenance of nurseries and the seasonal sale of products grown on the premises, subject to the following special requirements: [1] All buildings for display and retail sales of agricultural and nursery products grown on the premises shall not exceed one thousand (1,000) square feet in floor area or one (1) story in height. Display of produce at a roadside farm stand shall be not less than ten(10)feet from all street and lot lines. Any roadside farm stand in excess of fifty(50)square feet in floor area shall be set back twenty(20)feet from the street line. Any stand in existence at the effective date of this chapter must, within one (1) year, comply with all of the provisions hereof. [2] All signs shall conform to the provisions of § 100-31C(9). [3] Off-street parking as required in the Parking Schedule shall be provided" and shall be ; approved by the Planning Board. Any roadside - S Editor's Note: See§ 100-191A for the Parking Schedule. 10038 7-zs-s9 y: p, _ r_. _..., •iecxc•.5._� FOLIr��G o Z PLANNING BOARD MEMBERS SCOTT L. HARRIS Bennett Orlowski, Jr., Chairman VoO Supervisor George Ritchie Latham, Jr. Richard G. Ward Town Hall, 53095 Main Road Mark S. McDonald P.O. Box 1179 Kenneth L. Edwards PLANNING BOARD OFFICE Southold, New York 11971 Telephone (516) 765-1938 TOWN OF SOUTHOLD Faxj(516) 77655-1823 Lt 1J I , MEMORANDUM Fg im 2 5 f991 TO: Gerard P. Goehringer, Chairman1 Zoning Board of Appeals L' FROM: Bennett Orlowski, Jr. , Chairman JJ RE: ZBA Appeals # 3990 Cholowsky/Casola request to operate a driving range and miniature golf course for profit in an Agricultual/Conservation zoning district. DATE: January 24, 1991 The Planning Board has reviewed the above-noted appeal which requests a variance from a condition of the Special Exception for membership clubs that it be a not-for-profit enterprise. The Planning Board respectfully suggests that this request be denied. The foremost reason for this recommendation is that the applicant requests relief from a condition of a Special Exception. However, the Zoning Code does not grant the Zoning Board the power to modify a condition of a Special Exception by . granting a variance from same. Consequently, the applicant' s assertion (that the not-for-profit clause of the Code is illegal) , is a matter that clearly belongs before the legislative body that enacted that requirement--the Town Board. Reference is made to the attached copy of Section 24. 15 of New York Zoning Law and Practice. Third Edition. Robert M. Anderson. Volume 2. Pages 295-296. The Board also notes the following information for the record: 1. The proposed uses (driving range and miniature golf ( C .41 1 course) ARE NOT ALLOWED USES in the Agricultural Conservation district, while a typical golf course is a permitted use by Special Exception. 2. Commercial businesses,. other than farmstands affiliated with working farms, and special community facilities such as hospitals, do not belong in an Agricultural-Conservation district. 3 . Contrary to statements and supporting documentation found in Mr. McLaughlin' s Memorandum of Law, the issue is not that the zoning code restricts the form of ownership. The issue is that the Zoning Code implements the concept that commercial uses are not appropriate uses to be located within Agricultural-Conservation zones. A for-profit use can be, because of its commercial nature, more intensive than a not-for-profit use. 4. The cases cited in McLaughlin' s Memorandum of Law are not applicable here because they make specific reference to a permitted use. The uses proposed by this appeal are not permitted within the "A-C" district, unless the Zoning Board is prepared to issue an interpretation that the proposed for-profit driving range and miniature golf course uses qualify as " . . .an annual membership club catering exclusively to members and their guests. . . " Further, the cases dealt with attempts to exclude condominium ownership of property or dwelling units in favor of ownership by a single owner. In both cases, the decision made it clear that if the use was permitted, the type of ownership (condominium versus single) could not be grounds for preventing the use. In this case, the use is not permitted. In closing, it is felt that the proposed uses would be more appropriately located within an existing business-zoned district. NOTICE OF HEARINGS 7.43 p m:; ;No.4006 NOTI�REBY GIVEN,. AND MAR1 i7:" IEXANDER.' pursuant to Section 267 of New York Variance to the Zoning Ordinance, Town Law and the Code of the Town Article XXIV,Section 100-244B for of Southold,the following hearings permission to construct addition to STATE OF NEW YORK) will be held by the SOUTHOLD dwelling with an insufficient side yard )SS: TOWN BOARD OF APPEALS at a setback from the westerly property. Regular Meeting, at the Southold line.Premises is nonconforming as to COUNTY OF SUFFOLK) Town Hall.' 53095 Main Road, lot area in this R40 Zone District,and Southold.NY 11971,on FRIDAY. the existing dwelling structure is FEBRUARY 22, 1991.at the fol- nonconforming as to the westerly side SHARON ROCK of Mattituek, In lowing times: yard and southerly (rear)yard set- said County, being duly sworn,says that he/she Is Principal 7:30 p.m. App1 No. 3995 backs. Location of Property: South DAVID 1.STRUPP. Variance to the Side of Peconic Bay Boulevard,Lau- Clerk of THE,SUFFOLK TIMES, a Weekly Newspaper, Zoning Ordinance,Article III,Section rel,NY;County Tax Map Designation: published at Mattttuck, in the Town Of Southold, County Of 100-33 for permission to locate tennis 1000-128-04-020. p court and croquet court in an area •7:45 p.m. Appl. Mo: 3977 — Suffolk and State of New York,and that the Notice of which other than the required rear yard,for MffCIMLL MARKS,Variance to the use accessory and incidental to the Zoning Ordinance,Article XXIII,Sec- the annexed Is a printed copy,has been regularly published in applicant's residence. Location of. tion 100-239B for approval of swim- said Newspaper once each week for 1 weeks Property:Private Road,Fishers Island, ming pool,deck and fence construe- NY;County Tax Map District 1000, tion with a set-back at less than the successively, commencing on the 14 day of Section 003,Block 03,Lot 005;also required 100 feet from bluff"along the. FEBRUARY 1991 referred to as Lot 6 and 5C,Block 18, Long Island Sound.29829 Main Road,: Map of Chocomount 2. Orient,NY;County Tax Map Designa- 7:33 p.m.Appl.No.4001—PAUL tion 1000-14-2-1.6.Premises is locat-irk AND KATH .EEN FORESTIERI_ ed in the R-80 Zone District. . — I ax— Variance to the Zoning Ordinance, 7:50 p.m. 'Appl. No. 4004.. Article IRA,Section 100-30A.3,Arti- DAVID 1. VERITY. Variance to the•` cle XXIV,Section 100-244,for confer- Zoning Ordinance,Article IIIA,Sec- Principal Clerk mation or recognition of lot for the tion 100-30A.4(100-33)for approval The Board of rn will s at said p purposes of obtaining,in the future,a of accessory storage buildings located. time and place hear any and all per- building permit for a single-family 'in an area other than the required rear.- sons or representatives desiring to be 1welling in accordance with the zon- yard. Location of Property: 1673 heard in each of theabove matters. .g code set-back regulations. This ROW located off the easterly side of Written comments may also be sub- avant parcel is nonconforming as to . Rocky Point Road,East Marion,NY; mitted prior to the conclusion of the of area in this R-40 Zone District. also referred to as Lot#3,Minor subject hearing.Each hearing will not f C'. Location of Property:East Side of Par- ubdivision for Kimon and Wooden start before the time allotted.Addition- 191� ry!t `tr�} +„a,•?�York adise Shores Road,located approxi- etzos:County Tax Map Lot Designa- al time for your presentation will be / available,if needed. For more infor- - ;, ,-• +`�] rarely 1250 feet from the north side of on:1000-31-02-010.002 ration, lease call 765-1809.. Bayview Road,Southold,NY;County T:53 p.m. Appl. No. .4005 _ P Tax Map Designation 1000-80-01- THO AS KELLY and NANCY IAN- Dated:February 8,1991. 024.001. NICELLI. Variance to the Zoning BY ORDER OF THE SOUTHOLD. 7:37 p.m.Appl.No.4000—SAL- Ordinance,Article IN,Sept 100-33. TOWN BOARD OF APPEALS VATO F AND J ANNE CATAPANO. .GERARD P.GOEHRINGER Variance for approval of access pursuant j, for permission to locate accessory : CHAIRMAN to New York Town Law,Section 280-a, garage structure in an area other than /;,a . By Linda Kowalski over a private right-of-way beginning at the required rear yard and situated 6945-iTF14_. a point 514.73 feet from the southerly approximately 40 feet from Wells side of S.R.25(Main Road);along the Road.Premises is nonconforming as to. easterly side of South Harbor Road,and lot area in this R 40 Zone District and extending in an easterly"direction fronts along Jockey Creek-Location of 431.56 feet to Lot#2 of the pending property:2725 Wells Road,Southold, Minor Subdivision of the applicants NY, County Tax Map Designation: conditionally approved by the Planning 1000 70 4 16. Board on March 26,'1990.County Tax' Map Designations of the subject Right- of-Way r,, A 1 No: 3990 and Lot#2 are: 1000 69 6 9.3 18 ue Fi CHOLOW SKY(LOR- art and of 27 in the Hamlet of P n m• r [�a Sni.A Owner).Variance Southold,NY.. Ordinance,Article III, 7:40 p.m. Appl. 'No:'4002 =. to the Zoning FRANK C.GILBERT,JR.Variance to Section wo-31BOX0,concerning Pro- the Zoning Ordinance,Articles XXIII, posed establishment,construction and Section 100-239AB and ArticleXXIV, operation of a golf driving range,a Section 100-244B for permission to In golf course and building with office accessory and incidental lent set new addition with an opertyi- thereto,without necessity of owner- lient set back from the rear property P operation b a not-for-profit Owner- line and less than 75 feet from bulk- ship op Special Exception head.The existing nonconformities of - corporation. Sp this property are the lot area and set- applicntion to be filed separately. back of the existing dwelling to the Premises is known as 3340 T>t Map- bulkhead.Location of Property' 1095 Lane,Southold,NY:County North Parish Drive-at Bayview, Parcel ID No. 1000'55-1-9 and con- _s Southold;County Tax Map Designa- twins_ 6.7t acres.. tion:1000-71-01-011. NOTICE OF HEARINGS to as -__,j and 5C, Block 18. nonconforming as a wester] Map of Chocomount 2. ly side yard and southerly(rear) 7:33 p.m. Appl. No 4001- yard setbacks.Location of Pro- acres. The Board of Appeals will at PAUL AND KATHLEEN perty:South side of Peconic Bay 'said time and lace hear an NOTICE IS HEREBY GI of FORESTIERI. Variance to the Boulevard,Laurel,NY;County p Y and EN,pursuant to Section 267 o Tax Map Designation: all persons or representatives New York Town Law and the Zoning Ordinance,Article IIIA, desiring to be heard in each of Code of the Town of Southold, Section tion 10 -24 Article 107:45 -04-020. the above matters.Written com- the following hearings will be XXIV,Section 100-244,for con- 7:45 p.m. Appl., No. 3977- � y also be submitted firmation or recognition of lot MITCHELL MARKS.Variance ments ma held by the SOUTHOLD prior to the conclusion of the TOWN BOARD OF APPEALS for the purposes di obtaining,in to the Zoning Ordinance,B for subject hearing. Each hearing at a Regular Meeting, at the the future,a building permit for cle XXIII,Section 100-239B for will not start before the time Southold Town Hall, 530he a single-family dwelling in ac- approval of swimming pool, cordance with the zoning code deck, and fence construction allotted. Additional time for Main Road, Southold, NY your presentation will 'be 11971,on FRIDAY,FEBRUARY set-back regulations.This vacant with a set-back at less than the available, if needed. For more 22, 1991,at the following times:. parcel is nonconforming as to required 100 feet from bluff information please call lot area in,this R-40 Zone along the Long Island Sound. 7:30 p.m. Appl. No. 3995- 765-1809. DAVID J.STRUPP.Variance to_ District. Location of Property: 29829 Main Road, Orient, NY; . East side of Paradise Shores County Tax Map Designation Dated: February g, 1991. the Zoning Ordinance, Article permis- 1000-14-2-1.6. Premises is BY ORDER OF THE III, Section 100-33 for Road, located approximately SOUTHOLD TOWN 1250 feet from the north side of located in the R-80 Zone sion to locate tennis court and . BayvDistrict. BOARD OF APPEALS. County Road, Southold, NY; GERARD P. GOEHRINGER croquet court in an area other.. County Tax Map Designation 7:50 p.m. Appl. No. 4004- than the required rear DAVID J.VERITY.Variance to q yard,for CHAIRMAN ;�i000-saol-o2a.001. ... use accessory and incidental to 7.37 p.m. Appl. No. 4000 mac. the Zoning Ordinance, Article BY Linda Kowalski' the applicant's residence.Loca- SALVATORE AND JEANNE IIIA,Section 100-30A.4(100-33) J �.., 1X-2/14/91(22) tion of Property:Private Road, CATAPANO. Variance for ap- for approval of accessory Fishers Island,NY,County Tax proval of access pursuant to. , storage buildings located in an Map District 1000,Section 003, New York Town Law, Section area other than the required rear. Block 03,Lot 005;also referred ..280-a, over a private right-of- yard. Location of Property: way begining at a point 514.73 1673 ROW located off the feet,from the southerly side of easterly side of Rocky Point S.R.25(Main Road),along the Road, East Marion, NY; also easterly side of South Harbor referred to as Lot No.,3,Minor Road, and extending in an Subdivision for Kimon and easterly direction 431.56 feet to Woodene Retzos; County Tax . Lot No.2 of the pending Minor Map Lot Designation: Subdivision of the applicants 1000-31-02-010.002. conditionally approved by the 7:53 p.m. Appl. No. 4005- Planning Board on March 26, THOMAS KELLY AND NAN- 1990.County Tax Map Designa- CY IANNICELLI.Variance to tions of the subject Right-of- the Zoning Ordinance, Article Way and Lot No. 2 are: III, Section 100-33 for permis- 1000-69-6-9.3 and part of 27 in sion to locate accessory garage the Hamlet of Southold, NY. structure in an area other than 7:40 p.m. Appl. No. 4002- the required rear yard and FRANK C. GILBERT, JR. situated approximately 40 feet ., Variance to the Zoning Or- from Wells Road. Premises is dinance,Articles XXIII,Section nonconforming as to lot area in 100-239.4B and Article XXIV,. this R-40 Zone'District.and Section 100-244B for permission fronts along Jockey Creek;•'- to construct new addition with Location of Property: 2725 an insufficient set back from the Wells Road, Southold, NY; rear property line and less than County Tax Map Designation: 75 feet from bulkhead.The ex- 1000-70-4-16. isting nonconformities of this 1. 8:00 p.m. Appl. No. 3990- property are the lot area and set- MICHAEL CHOLOWSKY back of the existing dwelling to (LORINDA C. CASOLA; the bulkhead.Location of Pro- Owner). Variances to the perty: 1095 North Parish Drive Zoning Ordinance, Article at Baview, Southold; County III, Section 100-31B(7)(c) Tax Map Designation: 1000-71- concerning proposed establish- 01-011. ment, construction and opera- 7:43 p.m. Appl. No. 4006- tion of a golf driving range, a ERIC AND MARY ANN miniature golf course and ALEXANDER.Variance to the building.with office accessory Zoning Ordinance, Article and incidental thereto, without XXIV, .Section 100-244B for necessity of ownership or opera- permission to construct addition tion by anot-for-profit corpora- to dwelling with an insufficient tion.Special Exception applica- side yard setback, from the tion to be filed separately. westerly property line.Premises Premises is known as 3340 Hor- is nonconforming'as to lot area ton's Lane, Southold, NY; in this R-40 Zone District, and County Tax Map Parcel ID No. the existing dwelling structure is• ' 1000-55-1-9 and contains 16.7 t COUNTY OF SUFFOLK STATE OF NEW YORK ss; Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; 1 and that the notice of which the annexed is a printed copy, has been published in said Long Island Traveler-Watchman once each week for . . . . . . . . . . . . . . . . . . . . . . . . . . weeks successively, commencing on the . . . . . . . . . d a y o I . , ! . . . . . . . . . . . , 1 9 q/. . . ' t Sworn to before me this . . . . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . . . L Notary Public PARDIARA A. SCHNEIDER NCTAR7 PUBLIC, State of New York No. 4'06816 C:n�Vt�i S$iJil LX,rifCS��/3f ,y_ urn APPEALS BOARD MEMBERS SCOTT L.RABBIS `> > ;5„ :, Supervisor Gerard P.Goehringer,Chairman Charles Grigonis,Jr. a;;» ti° Town Hall,53095 Main Road Serge Doyen,Jr. zy t P.O.Box 1179 James Dinizio, Jr. Southold,New York 11971 Robert A. Villa BOARD OF APPEALS Fax(516)765-1823 Telephone(516)765-1809 TOWN OF SOUTHOLD Telephone(516)765-1800 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. If you or your representative should require more than 20 minutes to present your case, it is suggested that the extended presentation be submitted in writing at the hearing (if possible) . Please feel free to call our office prior to the hearing date if you have any questions or wish to update your file. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN Enclosure Notice of Hearings Southold Town Board of Appeals Regular Meeting - February 22 , 1991 Copies of Legal Notice Mailed to the followi.ng : 2/8/91 Dr. & Mrs . David J . Strupp , 455 East 86 St . , Apt. 34A, New York ,NY 10028 Mr . Paul Forestieri , 300 East 54 St. , New York, NY 10022 Paul A. Caminiti , Esq . , P. O. Box 992 , Southold , NY 11971 for Catapano Mr. & Mrs . Frank Gilbert , 1095 North Parish Drive , Southold ,NY 11971 Mr. & Mrs . Eric Alexander , 4580 Peconic Bay Blvd. , Laurel , NY 11948 Mr. Mitchell Marks , 60 East 8 Street , New York , NY 10003 Mr . David Verity , 2085B Shipyard Lane , East Marion , NY 11939 x.xlkomxxx.#eiiyx&xMxxxNRmayxiaRniaaiii4xRRRRxWeiixxRolid4x2omtkatd4NYxiigR1 Kevin McLaughlin ; Esq . ,828. Front _St. , P. O. Box 803 , Greenport ,NY for Cho1ows.ky/Caso1a Mr. J . Douglas Peix , 50605 Main Road , Box 333 , Southold , NY 11971 for Kelly/Iannicelli Notice of Hearings Southold Town Board of Appeals Regular Meeting - January 11 , 1991 Copies mailed to the following: Mr. Gregory Fegor, 215-14 49th Ave. , Bayside, NY 11364 Mr. Rudoloh Bruer, P.O. Box 1466, Southold, NY 11971 for Mr. & Mrs. Robert Sieber Mr. Paul Caminiti , Esq. P.O. box 992, Southold, NY 11971 for Mr. & Mrs. John Fiore Pamela Ann Conlon, 96 Shelley Ave. , Port Chester, NY 10573 Pudge Corp. , P.O. Box 1465, Southold, NY 11971 Mr. Mitchell Marks, 60 East 8th St. , New York, NY 10003 Ward Associates, P.C. , 1500 Lakeland Ave. , Bohemia, NY 11716 for Stanley Wernick Mr. and Mrs. Henry Raynor, 275 Cardinal brive, Mattituck, NY 11952 Mr. Joseph Sawicki , 4002 ROW off Old North Rd. , Southold, NY 11971 for Frank Sawicki J. Kevin McLaughlin, Esq. , 828 Front St. , P.O. Box 803, Greenport, NY 11944 for Michael Cholowsky (.� Kenneth L. Edwards, P.O. Box 332, Fishers Island, NY 06390 application be'filed enclosure for patio and Existing.,^•_ "Exception app' r Li" ' I _ wooden deck with insu �It set� �; .�ieparately:Premises=is:knbw,lt�ss. ' backs from the bulkhead ide(or '3340 Hotton's Lane;'Southold NY.-, rt line on.th nerlot 6aattg.Tlx M,�aP Parcel ID Igo:1000 ,: rear)prope Y 16 7t acres. - fronting along Cedar Beach Road and': 55-1-9 and concerns i 'No,,39933 " 8i15 p.m.App the west side:of Sunset Way,;-... rT" Southold,Nsi County Tax Map Par, KENNETH L.EDWARDS.Vart eel ID No.1000-91-1-5;also referred ;:.:once to the Zoning Ordinance,Article to as Lots 158 and 159 on the"Map III.Section 100-33 (100 30A.4)'for " of Cedar Beach Park Subdivision-" ;-:,Permission to locate Accessory bnt7d- (The dwelling as exists is noncon- "'''': inB in an area other rhea the required' forming as to the rear yard and side- .:''tear yard. Fishers Location mod, Tt C"a�., yard setback,and the lot area and Gloaming ep Patcd ID No. 1000-10 9 depth are also noriconfomtmg m thls ty_ R-00 Zone District) 5 'Z,'.�:R-40 Zone DistncL,_ ;� A 1 No The Board of'Appeals in. .t said ?:38 p.m PP "x r�;°f *-e and"lace hear any snd all per ppMELA AN14 GONLON.Vadaiice:_,K„3,Wr► P to the ZoningOrdihauce;'Article :;`.`-SWS ce mP! utives"desiriaB b4 7QQV,Section.100 244B for petmis=.'t ;'theard in emch-of the aboire matters: Sion to construct new dwelling with= *„Wnd prior w the canclus on ofsthe -insufficient front and side yard set-: ;y Each heminB w'�riot: backs.(Me lot is nonconforming as � a,;Nbj hearing ,backsto a and depth in this Agriailtural'_` .1..kirt before the time allotted.Add't Conservation Zone Distriex)Location_.:.a==t<onel time for-your ptesenmtim will,`; of property:1765 Pecordc Bay Boule- ` 'be.available,if needed. For more,; vard (a/k/a 100 N. Oakwood Dr.), { mfwmatian;please.ca11765-1809 Ffz e -" ber,13,1990. Laurel,NY;Parcel ID No 1000 127- aDa 13Y ORDER OF THE SOUTHOLD: 8-9.. TOWN BOARD OF APPEALS 7:42 p.m. Appl No.�3984 = GUARD P.GOEHRINGER _ )PUDGE CORP.Variances to the `CHAIRMAN Zoning Ordimin Article XIV,Sec ' K ` tins 100-141B(1)end C(1) (1J for By Linda Kowalski,Y \ permission to establish back ieiSYatY 4 business as an accessory use,n 8ddi t '— 'tim to the Special Exception use con- ditionally approved 9/10/87.under ! Appl.No..3660,and as limited by Condition;No:`•10; and (2) for .approval of extended (modified)_ 5 a. height of principal building,in excess ,,w ° ;of that approved under Special STATE OF NEW YORIQ Exception Condition No.8 Premises .; )SS: zoned Light Industrial(L�'aild is ' (;AUNTY OF SUFFOLIQ i`"located at 1040'Hof`tort's:Lane,. Southold Ny;..Coi_4 Tax Map Par cel ID Nod 100043-1-10..• " ' t ;45'p.tn"AppI No. 3977 _-'� ��-�C of Mattituck, In ;-!;&CHELL MARKS.variance o` said County, being duly sworn,says that he/she Is Principal the Zoning Ordinance,.Article"XXIII;":; � Section 100-239B for approval o Clerk of THE SUFFALK TIMES, a Weekly Newspaper, - swimming pool.deik_and fence cea ; published at Mattituck, in the Town of Southold, County of 1 ° - .struction with a setback at less[hen.u,,. ' the required 100 feet from bluff along, Suffolk and State of New York,and that the Notice of which -'the'Long Island Sound.29829 Mein., the annexed Is a printed copy,has been regularly published in Road,Orient,NY;County Tax Map parcel ID No.1000-14-2-1.6.Prams- said"Newspaper once each week for weeks es is located;n the R-80 Zone DIS # .. SUCcessively, c0 meneing On the �� day Of ..1tia3. 7:48 pp m. Appl No 3996 A�U ig� + `SSTTANLEY WERNICK.Variance to the Zoning Ordinance;Article X7G ' Section 100-239.4B for percussion to:C, construct addition and pool with fence enclosure with a setback at less NOTICE OF HEARINGS an the required 100 feet from the NOTICE IS HEREBY GIVEN;' ;' top of.blaff along the Long Island Pt nCl Clerk Sound premises is zoned R 80 Rest xirstiant to Section 267 of New York 'denual and located along Private Pown Law and the of the Towrt,,� Road No t Cutchogue; County of Southold,the following hwring3 F Tau Map parcel ID No 1000 72 will be held by the SOUTHOLD ; iTk TOWN BOARD OF APPEALS at a . 1 } Swoon t0 a ore is 7.52 p.m Appl. No- 3998 Regular Meeting,at the Southold drHENRY AND MARY RAYNO, Town Hall, 53095 Main.Road, r 19� N'iA?y K.DEGNAN Southold,NY 11971;on FRIDAY. Variance for approval of access par day 0 ?T,z�Y P11Li lam,<i2ie of Neuu Y0r't JANUARY 11,1991,at the following ant to New York Town Law,Sec lion 280-A over private right-0of way „! t 0�ln a10. ":•o<<'3 s `t off the South side of Peron �- extending" .7:30 p.m: Appl No. 3994_=- �'_ic Bay Boulevard;Laurel,to premmses �7 GREGORY FEGOS.-Variance to them ids-ied as County Tax Map Parcel --- ZoniuQ Ordinance,Article xxlv;.s1= '•Non 1000.126j1 1,2,5.Premises.is - Sec'tio '100-244B for approval.of -1�ted in the R-40 Low-Residential- open deck addition with a reduced. ,:::;.:zone District and is also referred to as --�� setback from the,southerly side prop- '";;;;Lots 24 through 30 on the Map of — erty line.(Ibe lot area and.depth. . ti this are noncenfonning in this :_ "A.L.Downs"filed in the Suffolk R-40 Zone District.)Location of County Clerk s.Office on August 14 p,ope,tyi 1450 Naugles Drive.Mato , ]929 as File No.21. Count Tax Ma Parcel ,p.m.:Appl No 3999 tuck,NY; Y P FRANK SAWICKI.Variance to the " Na 1000 099 5-17 Ordinance,Article III.Sec ;7:33 p.m. Appl. No,_.3996. Zoning ROBEItT AND NORMA SIEBER. ,,, tion 100.31 for permission to utilize Variance to the Zoning Ordinance„.., :,_'existing bars for storage of.general " Artier)MV.,Seetion 100-244(B)for A,�_.lt- (instead is agricultural storage). approval of deck/patio construction"• ;Subject premises is located in the with an insufficient front yard set-:`- ABnc'ilm�-C°nservation Zone Dis- back.(lbe lot is nonconforming as t° r;trier and.is."situated along the north area and width in this R-40 Zone Dig-. ;: :.side of Old North Road,SouthTT trict.)Location of Property:4945 _';; Identified on the Suffolk County Main Ba ew Road and the Baste Maps as Parcel No.1000-51-03 005•. Y r. 8:03 p.m..Appl. No.'3990 side Of Smith Drive North.Southold, r CHOLOWSKY also referred to as Lots 83&84 o„ ="MICHAEL .+: Owner. ORINDA C.CASOLA, the Subdivision map of "Goose U' Ordinanc�,. - Neck";County Tax Map Parcel ID Variance to the Zoning Article III,Section 100-31B(7)(c) { No 1000-76-2 20. k= Proposed establishment, -:7:35 p.m. Appl. No. 3991 -;. . oncoming eonstruction and operation of a.golf JOHN AND GRACE FIORE-Vari e a ministate olf apurs� driving range, g ;. once to the Zoning Ordinance,Amcle `and building with office accesso ' XX1 N,Section 100-244 and Article jQQV, :and incidental thereto.without Section 100-244B and Article neces- sity of ownership or operation by'a r Section 100-239.4.for petnus S ctal p�`pn to eauttuct extension to sot for profit corporation. Pe -+�Gt.tS£:.. :-�.�.«... ,. ..- ..��..mx. .�,... .:a'�r.:.�i'�te� ?'?. ?`.'.c;,`3e"�,.,`':•s'; .. - ... .... ., ., �.,�... ,._...��:.<. .�ra..: ,rri COUNTY OF SUFFOLK ss: STATE OF NEW YORK Patricia Wood, being duly sworn, says that she is the Editor, of THE LONG ISLAND TRAVELER-WATCHMAN, a public newspaper printed at Southold, in Suffolk County; and that the notice of which the annexed is a printed copy, haS bccn published in said Long Island Traveler-Watchman once each week for.. . .. . . . ... ... .. . ..... . weeks successively,commencing on the .. .. .. .....'.3�... .. da . . .. . . . . .. . .. . . .. 19.9(. . Sworn to before me this . . ... ...... ...... .. day of 19 . . . .. . ... . .... Notary Public + BARBARA A.SCHNEIDER NOTARY PUOLIC,State 01 NN Y44 No.4806846 Qualified in Suffolk Commission Expires r 3i/-,- :+NOTICE OF HEARINGS r`of'.Cedar Beach Park Subdivi r slon" g -ploo feet from the top of bluff` 8:15'p.m. Appl. No. 3993-'t (The dwelling as exists is ,talon the Lon Island Sound. "a'KENNETH, L.',,EDWARDS.'-;J ¢?' ,nonconforming as to the rear 8 B i,- Premises is zoned R-80 Residen- . Variance to the`Zoning Or 'NOTICE IS HEREBY GIV and'sideyard setback,and tial and is located along Private F I dfnance, Article'III, Secttok' ;EN,pursuant to Section 267 of the lot area and depth are also goad No. 5 at Cutchogue ;100.33(100.30A.4)for pennts nonconforming m this R 4(1 New York Tbwn Law.and the y County lax Map Parcel ID Na sion to locate accessory builduig Zone District.) t Coda of the Town of Southold, +7:38 p.m:Appl. No. 3992 1000.72-1-1.6: �::: in an area other than the re-`' the following hearings will be .` 752 p.m. Appl. No. 3998- quired rear yard.+Location of; held by-the SOUTHOLD {PAMELA ANN CONLON HENRY AND MARY RAY Property: The Gloaming'?.' DOWN BOARD OF APPEALSVariance'to'ahe 'Zoning'Or ,=NOR.Variance for approval of. rFishers Island,NY;County T'air3 f a Regular Meeting, at,the durance,Article XXIV,Section /: 8 g access pursuant to New York'. Map Parcel ID No 1000.10.9-2 i; 100.244B for permission to con.:':Southold Town Hall, 53095 � Town Law,Section 280.A over ,R-40 Zone District ,sMain Road, Southold, NY. ':"_struct new dwelling with insuf private right-of--way extending, The Board of Appeals wifl'at:" 11971,on FRIDAY,JANUARY backLent front and side yard set off the south side of Peconic said time and place hear any and 4 i t 1991,at the following times backs (The lot is nonconfonn Ba Boulevard, L$urel; tol. aN mg as to area and depth in this Y Persons or,representative P.m.'Appl. No. 3995 ,;i I: .. eP premises identified as County desiring to be heard in each of:, GREGORY'FEGOS. Variance'- :Agricultural—Conservation Tax Map Parcel Nos. the above matters.Written com-" to the ZoningOrdinance,Arti. . ' ;'Zone District.)Location: 1765 e, , .; 1000-126.4-1,,2,S. Premises is t,:s meats may also be submitted ;cle XXIV,Section 100-244B for Peconic Bay Boulevard,a/k/a 'rlocated in'the R-40 Low= prior to the conclusion of the=' approval of open deck additions N..Oakwood Drive,Laurel Residential Zone District and is sutiject hearing.-Each hearing 'th a reduced setback from the "•tY NY;Parcel ID No.1000.127-8-9 ,also referred to,as Lots 24 'wig not start before the tune:; southerly side property fine. 7:42 p.m. Appl No. 3984 through 30 on the Map of'A.L. - 'allotted Additional time for. i he lot area and depth of thi PUDGE CORP. Variances to P the Zoning Ordinance,Article Downs" .fled in the Suffolk ,vrF your, presentation will be i + parcel are nonconforming in this XI V,Sections 100 141B I and ! County Clerk's office on August: available,if needed.,For mon 3 R 40 Zone District.)Location of O 14 1929 as File No.2( ,"information, please call ,,,,..Property: C(1): (1) for permission to P Y•,1450.Naugles Drive,r „'- 7:57 p.m..Appl.'No 3999 ' 7651809 Mattituck,,�NY, County Tbx w establish truck rental business as FRANK SAW ICKI Var °'to Dated December 13, 1990. - i tYfap Parcel No. 100-099 5 17 3c an accessory use in addition to �4+➢ances to the Zoning Ordinance ' BY ORDER OF THE j p.m: Appl. No 3986 -, the Special Exception use con O'Article III,Section 100-31 for }SOUTHOLD TOWN BOARD t zw ROBERTANDNORMASIE ,ditionally.approved 9/10/87 ;„ e ,, under Appl.No.3660,and as [rEpennission to utilize existing ; t »+xv�i:OF APPEALS i BER. Variance to the Zoning barns for`.storage of general iGERARD P GOEHRINGER Ordinance,Article XXIV Sec limited by-Condition No. 10 pG"items (instead of;agricultural " ' s and 2 for a �l!yt `CHAIRMAN pr,non 100-244(B)for approval of O PProval of extend storage):, Subject'premises is-,f j Linda Kowalski 'I e ed (modified)height of,prin e i4%J �oX deck patio construction with an � L 3 located in;the Agricultural-' 1/3/91 [at pisufficient front yard setback. ctPa1 building,in excess of that r F onservation Zone District ands l ti tY(T he lot is nonconforming as to. ;approved under Special Excep- 11s,7 is situated along the north side . - ',tion Condition No.8.Premises A`- area and width in this R40 Zone A rof Old North Road,Southold District.)Location of Property is'zoned Light Industrial(LI) Iidentified on the Suffolk Coun 4945 Main`Bayview Road and and is located.at Ii740 Horton's f T090 51-03 005 r tY{ Maps as Parcel No the easterly side of Smith Drivel'Southold,,NY County . North;Southold;also referred . Tax Map Parcel ID No ;;'8:03 p.m. Appl. No 3990.' ` divisionmapts q,as3of'Goose Neck84 on the1, 1000.5 p . '7 I_ (�LORINDA CICHAEL H CA OLAY 7.45.p m Appl. No 3977 PP County Tax Map Parcel ID No � MITCHELL MARKS.Variance 4 bwner).Variance to the Zoning '1000 76 2 20 ,,. z,, to the Zoning Ordinance,Arti h Ardinance,Article III,Section , fS�f7 35 p.m:"-A 1..No: 3991 fC1eXXIlI,Section 100.239B for PP a°v• i00 31B(7)(c) concerning pro approval'of swimming pool ¢. t JOHN AND.GRACE FIORE. posed establishment,construe a;'Variance to the Zoning Or deck 'and fence construction —-tion and operation of a golf. Vi-tiinane Article'XXIV,Section y With a setback at less than the driving range,a miniature golf I „ eet from bluff l?100.244 and Article XXIV,Sec- :required 100 f f }tcourse and building with office along the Long Island Sound _ tion. 100-244B and Article :accessory and incidental thereto, XXIII, Section 100.239.4 for 3 r29829.Main Road,Orient,NY, without necessit of ownership neratission.to_construct_eaten y tCounty Thx Map Parcel ID No. oro operation y 1000-14-2-1.6. Premises is P byanot-for-profit i sion to screen enclosure for corporation.Special Exception located in the R 80 Zone 3p patio and existing wooden deck u -a lication to be filed i orate- ' -W'ith insufficient setbacks from Aistnct:: r *�b+•r�� 1 p premises is known aps 3340 E+ f; y the bulkhead and side(or rear) 7 48 p.m. Appl. No 3996 j Horton's Lane,Southold NY, STANLEY WERNICK. Var- - property line on this corner lot County 7hx Map Parcel ID No. 1�'gfronting along Cedar Beach fiance to the Zoning Ordinance, x ,10 u 55 1 9 and contains 16 7 t s rRoad and the west side of 1 'Article XXIII, Section J' 1 onset Way, Southold, NY `'IM239AB for .acres K' '+construct additio permission.d Pool Count Ta:t Map Parcel ID No 6 �I 11100 91 1 5;also referred to ask nth cc enclosure with as fen et- Y " / back at less than the required Lots 1 8 an�1 .. 5 d 159 on the"Map, „,�i,....,' ,. .a �,:y::v�a�m+.,.._.:»...., -n tiuif.y�,a ..... nc�.y::. ,y .I 'emu. .-..c+'i�•i = F: °`r § 24.15 NEW YORK ZONING k : ingly, it may not issue special permits other than those specifi- cally authorized by the ordinance A board may not, for exam- ` ple, grant a special permit to extend cabanas, bathhouses, and Yr parking, tennis, and swimming facilities of a beach club into a restrictive residential district, under the guise of permitting a clubhouse which would occupy an insignificant portion of the :, land.4 A commercial use of land for a bowling alley, restaurant, r and bar may not be permitted to extend from 11/2 percent of ""'' land in a commercial district to occupy 981/2 percent of land in a ' residential district, where the ordinance does not allow the '. extension of use into a more restrictive district if a major fraction of the use will extend into the more restricted zone.' A board of zoning appeals may not, of course, grant a special permit unless the applicant has demonstrated his compliance rya with the conditions imposed by the ordinance, and the board must make such findings as the terms of the ordinance requires 3. The zoning ordinance authorized A board of zoning appeals lacks ? the board of zoning appeals to permit authority to grant a special permit to theatres of 500-seat capacity in the establish a car wash in a commercial ?' district in issue. The board granted a district where the ordinance autho- permit for a 500-seat theatre, plus a rizes garages and gasoline stations, second theatre of the same size in the under such permits, but does not a. same building. The court held that mention car wash establishments. the board was without authority to Hartnett v Segur, 21 AD2d 132, 249 '4 grant the second permit. New York NYS2d 193 (1964, 3d Dept). A G ` Life Ins. Co. v Galvin, 41 AD2d 83, 4. Schroeder v Kreuter, 206 Misc 340 NYS2d 822 (1973, 1st Dept), mod 198, 132 NYS2d 144 (1954), affd 284 35 NY2d 52, 358 NYS2d 724, 315 AD 972, 135 NYS2d 637, affd 308 NY NE2d 778. 993 127 NE2d 845. A board of zoning appeals is with- ' out authority to grant a special per- 5. Application of River Drive a`v mit to construct a tennis court nearer Constr. Corp., 30 Misc 2d 139, 216 than 100 feet from a lot line in a NYS2d 955 (1961), affd 14 AD2d 884, residential district where such use is 218 NYS2d 566(2d Dept). p proscribed by the zoning ordinance. Where the zoning ordinance autho- r' This result is required notwithstand rizes issuance of a special permit to ing that abutting lots are effectively conduct a garage, minor garage, or screened by woods and shrubbery. motor vehicle repair shop, the board Falkenbury v Schultz, 44 AD2d 827, of zoning appeals may not permit the 355 NYS2d 22(1974, 2d Dept). bonding, riveting, and assembly of A board of zoning appeals is with- brake shoes. Sirota v Grunewald, 222 out authority to grant a special per- NYS2d 841 (1961, Sup); Tully v Mi- mit for the construction of a fence chaels, 33 Misc 2d 814, 222 NYS2d where the zoning ordinance does not 395 (1961). provide for a special exception for such use. Application of Davison, 18 6. A board of appeals erred in AD2d 740, 235 NYS2d 429 (1962, 3d granting a special permit for a school Dept). to an applicant who was acting for a 296 a "l - -r .t SPECIAL PERMITS § 24.15 !e as applied to his ` intervene in the absence of clear illegality. The issue, for exam- ,al difficulties.18 ple, of whether a gasoline station in a particular locality would •d of zoning appeals imperil the safety of persons or property is one of fact for the nance or for failure board to decide.' e ordinance. Where A board of zoning appeals has no legislative authority. Accord- nents for a special permit may not be 2. Texaco, Inc. v Segur, 24 AD2d affd 51 NY2d 887, 434 NYS2d 972, rence to the provi- 692, 261 NYS2d 374(1965, 3d Dept). 415 NE2d 961. 1e Courts have Said A special permit for nursery use in Generally the courts will not inter- a residential area will not be annulled fere with a zoning board's resolution ed by the Common- where the use was authorized by the of a special exception issue as such Courts should not '" ordinance and substantial evidence issues are best "resolved by the 'com- supported the determination of the mon-sense judgments' of `representa- off-street parking as a board. Cummings v Town Bd. of tive citizens doing their best to make ipecial permit. Titus St. North Castle, 95 AD2d 818, 464 accomodations between conflicting Owners Ass'n v Board NYS2d 13 (1983, 2d Dept). community pressures'." Burger King gals, 205 Misc 1083, 132 Denial of a special permit to estab-- Corp. v Amelkin, 70 AD2d 627, 416 54). lish a "commercial recreation" use NYS2d 528 (1979, 2d Dept). zoning ordinance re- was not unreasonable where the pro- Denial of an application for a spe- special permit be se- posed use consisted mainly in a bar cial exception to erect a freestanding ion, but does not offering entertainment, the recre- sign will be sustained where the ovat ion io the environment - ational facilities being clearly subsid- board's decision was not arbitrary or 'or issuance, a board of iary to the main use. North Ridge capricious. Evidence that 'the appli- ,t deny a permit on the Enterprises, Inc. v Westfield, 87 AD2d cant's business was near the highway ze proposed use as a 985, 450 NYS2d 112 (1982, 4th Dept), and identified by existing signs was will involve potential affd 57 NY2d 906, 456 NYS2d 763, sufficient to support a denial of relief. hazards. Chem-Trol 442 NE2d 1274; citing Anderson, New Bushell v Sacca, 69 AD2d 861, 415 ces, Inc. v Board of York Zoning Law and Practice NYS2d 449(1979, 2d Dept). 2d 178, 411 NYS2d 69 §§19.16, 19.18, 19.20(2nd Ed 1973). Where an ordinance includes res- A developer's application for a spe- taurants among the uses allowed in rd of a cial exception should be granted by the district under special permits, and ppeals is with- zoning board of appeals when the one standard for judging permit appli- to deny a permit to developer meets the ordinance re- cations is whether the use "is reason- free liquor store in a quirements and the adjacent landown- ably necessary for the public health ntly sited in a district ers offer no proof to contradict the or general interest and welfare," a se is permitted, on evidence provided by developer's ex- permit may not be denied unless the rovided in the ordi- pert witness. North Shore Equities, record shows that the proposed use iffalo Zoning Board of Inc. v Fritts, 81 AD2d 985, 440 will be injurious to the public welfare. )2d 991, 401 NYS2d NYS2d 84(1981, 3d Dept). Cove Pizza, Inc. v Hirshon, 61 AD2d ,ept); citing Anderson, An application for a special permit 210, 401 NYS2d 838(1978, 2d Dept). f Zoning§19.19. to conduct soil mining on a 107.7-acre A board of zoning appeals did not lance authorizing the parcel was supported by a 60-page, act arbitrarily when it approved a r review all site plans $15,000 study. Nevertheless, where special permit for a 72-unit mobile ipliance with the zon- the record supports the Board of Ap- home park but denied a permit for an lid not authorize the peals' determination that its stan- additional 265 units. The applicant to require a 230-foot dards were not met, and where the had failed to meet its burden of proof trict where a 35-foot standards prevent unchecked discre- by supplying the detailed plans re- ?uired by the ordi- tion on the part of the board, the quired by the zoning ordinance. Pais- a Realty Holding Co. determination of the board will not be ley Development Corp. v Zoning 48 AD2d 852, 368 set aside. Miller v Ward, 72 AD2d Board of Appeals, 58 AD2d 705, 396 2d Dept). 565, 420 NYS2d 745 (1979, 2d Dept), NYS2d 99(1977, 3d Dept). ;' ,. 295 APPEALS BOARD MEMBERS ; ., , ►-T SCOTT L. HARRIS Supervisor Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Serge Doyen, Jr. Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 James Dinizio, Jr. BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 (7)1 TO WHOM IT MAY CONCERN: Enclosed herewith as confirmation of the time, date and place of the public hearing concerning your recent application is a copy of the Legal Notice, as published in the Long Island Traveler-Watchman, Inc. and Suffolk Times, Inc. Please have someone appear in your behalf at the time specified in the event there are questions brought up during the same and in order to prevent a delay in the processing of your application. Your public hearing will not start before the time allotted in the attached Legal Notice. If you or your representative should require more than 20 minutes to present your case, it is suggested that the extended presentation be ! submitted in writing at the hearing (if possible) . Please feel free to call our office prior to- the hearing date if you have any questions or wish to update your file. Yours very truly, GERARD P. GOEHRINGER CHAIRMAN Enclosure i Southold7own Board of Appeals MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN \ CHARLES GRIGONIS,JR. SERGE DOYEN,JR. NOTICE OF HEARINGS 0ames: DI:.rf-i -i.o ,. Jr. NOTICE IS HEREBY GIVEN, pursuant to Section 267 of New York Town Law and the Code of the Town of Southold, the following hearings will be held by the SOUTHOLD TOWN BOARD OF APPEALS at a Regular Meeting, at the Southold Town Hall, 53095 Main Road, Southold, NY 11971, on FRIDAY, JANUARY 11, 1991, at the following times: 7:30 p.m. Appl. No. 3995 GREGORY FEGOS. Variance to the Zoning Ordinance, Article XXIV, Section 100-244B for approval of open deck addition with a reduced setback from the southerly side property line. (The lot area and depth of this parcel are nonconforming in this R-40 Zone District. ) Location . of Property: 1450 Naugles Drive, Mattituck, NY; County Tax Map __Parcel No. 1000-699-5-17. 7:33 p.m. Appl. No. 3986 - ROBERT AND NORMA SIEBER. Variance to the Zoning Ordinance, Article XXIV, Section 100-244(B) for approval of deck/patio construction with an . insufficient front yard setback. (The lot is nonconforming as. to area and width in this R-40 Zone District. ) Location of Property: 4945 Main Bayview Road and the easterly side of Smith Drive North, ' Southold; also. referred to as Lots 83 & 84 on the . ' Page 2 Notice of Hearings Board of Appeals Regular Meeting — January 11, 1991 Subdivision map of "Goose Neck"; County Tax Map Parcel ID No. 1000-76-2-20. 7:35 p.m. Appl. No. 3991 - JOHN AND GRACE FIORE. Variance to the Zoning Ordinance, Article XXIV, Section 100-244 and Article XXIV, Section 100-244B and Article XXIII, Section 100-239.4, for permission to construct extension to screen enclosure for patio and existing wooden deck with insufficient setbacks from the bulkhead and side (or rear) property line on this corner lot fronting along Cedar Beach Road and the west side of Sunset Way, Southold, NY; County Tax. Map Parcel ID No. 1000-91-1-5; also referred to as Lots 158 and 159 on the "Map of Cedar Beach Park Subdivision." (The dwelling as exists is nonconforming as to the rear yard and sideyard setback, and the . lot area and depth are also nonconforming in this R-40 Zone District. 7:38 p.m. Appl. No. 3992 - PAMELA ANN CONLON. Variance y: to the Zoning Ordinance, Article XXIV, Section 100-244B for.. �< permission 'to construct new dwelling with insufficient front and side yard. setbacks. , (The lot is nonconforming as to area and depth in this Agricultural-Conservation Zone District. ) Location of Pro ert 1765 Peconic_ Bay Boulevard (a/k/a 100 N. Oakwood Dr. ) , Laurel , NY; Parcel. ID #1000-127-8-9. .:'. .::,: _ 7:42 p.m. Appl. No. 3984 - PUDGE CORP. Variances to the Zoning Ordinance, Article XIV, Sections 100-141B(1) and C(1) (1) for permission to establish truck rental business as an accessory use, in addition to the Special Exception use conditionally a i'pproved 9/10/87 under Appl. No. 3660, and as, limited by Condition No. 10; and. . (2) . for approval of extended t .. .._. < .. _w.. .....,.>, ,,,., f �..,.;.;s ....z.., -.,.r ...... ..s .,......-. ,. rre..«+..•.A_':a.=' ;.s+:-'..,.3e`';^�a",`k,.:'.�'.w..,'.:<.<,r<> T tr -; f Z.` -icy 1 . Page 3 Notice of Hearings . Board of Appeals Regular Meeting - January 11, 1991 {modified} height of principal building, in excess of that approved under Special Exception Condition No. 8. Premises is zoned Light Industrial (LI) and is located at 1040 Horton's Lane, Southold, NY; County Tax Map Parcel ID No. 1000-63-1-10. 7:45 p.m. Appl. No. 3977 - MITCHELL MARKS. Variance to the Zoning Ordinance, Article XXIII, Section 100-239B for approval of swimming pool, deck and fence construction with a setback at less than the required 100 feet from bluff along the Long Island Sound. 29829 Main Road, Orient, NY; County Tax Map Parcel ID No. 1000-14-2-1.6. Premises is located in the R-80 Zone District. 7:48 p.m.. Appl. No. 3996 - STANLEY WERNICK. Variance to the Zoning Ordinance, Article XXIII, Section 100-239. 4B for permission to construct addition and pool with fence enclosure with a setback at less than the required 100 feet from the top of bluff, along the Long Island Sound. Premises is zoned R-80 Residential and is located along Private Road No. 5 at Cutchogue; County Tax Map Parcel ID No. 1000-72-1-1.6. 7:52 p.m. Appl. No. 3998 - HENRY AND MARY RAYNOR. Variance for approval of access pursuant to New York Town Law,- Section 280-A over private right-of-way extending off the south side of Peconic Bay Boulevard, Laurel, to premises identified as County Tax Map Parcel Nos. 1000-126-4-1, 2, 5. Premises is locatecl)in the R-40 Low-Residential Zone District and is also referred to as Lots 24 through 30 on the Map of "A.L. Downs" Page 4 Notice of Hearings Board of Appeals Regular Meeting - January 11, 1991 filed in the Suffolk County Clerk's Office on August 14, 1929 as File No. 21. 7:57 p.m. Appl. No. 3999 - FRANK SAWICKI. Variance to the Zoning Ordinance, Article III, Section 100-31 for permission to utilize existing barns for storage of general items (instead of agricultural storage) . Subject premises is located in the Agricultural-Conservation Zone District and is situated along the north side of Old North Road Southold, identified on the Suffolk County Tax Maps as Parcel No. 1000-51-03-005. ✓� 8:0 3 �.. p.m. Appl. No. 3990 - MICHAEL CHOLOWSKY (LORINDA C. i' CASOLA, Owner) . Variance to the Zoning Ordinance, Article III, Section 100-31B(7) (c) concerning proposed establishment, construction and operation of a golf driving range, a miniature golf course and building with office accessory and incidental Lf hereto, without necessity of ownership or operation by a ot-for-profit corporation. Special Exception application to be iled separately. Premises is known as 3340 Horton's Lane, outhold, NY; County Tax Map Parcel ID No. 1000-55-1-9 and contains 16.7+- acres. 8:15 p.m. Appl. No. 3993 - KENNETH L. EDWARDS. Variance . to the Zoning Ordinance, Article III, Section 100-33 (100-30A.4) for permission to locate accessory building in an area other than the required rear„ yard. Location of Property: The Gloaming, Fishers Island, NY; County Tax Map Parcel ID No. 1000-10-9-2. R-40 Zone District. l� - Page 5 Notice of Hearings Board of Appeals Regular Meeting - January 11, 1991 The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in each of the above matters. Written comments may also be submitted prior to the conclusion of the subject hearing. Each hearing will not start before the time allotted. Additional time for your presentation will be available, if needed. For more information, please call .765-1809. Dated: December 13, 1990. By ORDER OF THE SOUTHOLD _ TOWN BOARD OF APPEALS GERARD P. GOEHRINGER CHAIRMAN By Linda Kowalski ----------------------------------------------------------------x ;i o APPEALS BOARD MEMBERS C=- T SCOTT L. HARRIS S Supervisor Gerard P. Goehringer, Chairman O�- Charles Grigonis, Jr. �01 `�� Town Hall, 53095 Main Road Serge Doyen, Jr. P.O. Box 1179 Joseph H. Sawicki Southold, New York 11971 James Dinizio, Jr. BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 TO: Town Clerk' s Office FROM: ZBA Office DATE: November 26, 1990 SUBJECT: Variance Application by Michael Cholowsky 1000-55-1-9 - Proposed Mini Golf Course We request that the attached application, which was received by our office on November 8, 1990, be filed as submitted, as authorized by the Town Attorney' s Office. lk ,�. i` _ S APPEALS BOARD MEMBERS SCOTT L. HARRIS � `;_ r n Supervisor Gerard P. Goehringer, Chairman "�- Charles Grigonis, Jr. ''`® •® Town Hall, 53095 Main Road Serge Doyen, Jr: P.O. Box 1179 Joseph H. Sawicki Southold, New York 11971 James Dinizio, Jr. BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 TO: Town Clerk' s Office FROM: ZBA Office DATE: November 26, 1990 SUBJECT: Variance Application by Michael Cholowsky 1000-55-1-9 - Proposed Mini Golf Course We request that the attached application, which was received by our office on November 8, 1990, be filed as submitted, as authorized by the Town Attorney' s Office. lk o��FFo��r�oG o y` tpl' qF Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 JUDITH T.TERRY FAX(516)765-1823 TOWN CLERK TELEPHONE(516)765-1801 REGISTRAR OF VITAL STATISTICS OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Zoning Board of Appeals FROM: Office of the Town Clerk DATE: November 26, 1990 RE: ZONING APPEAL NO. 3990 - MICHAEL CHOLOWSKY Transmitted herewith is the Zoning"::: Appeal Application No. 3990 of MICHAEL CHOLOWSKY together with a memo to the. Town Clerk's Office from the ZBA Office, a letter from J. Kevin McLaughlin,, Notice to Adjacent Property Owners, Short Environmental Assessment Form, Board of Appeals Questionnaire, Survey Map of the Property, and 3 photographs. Judith T. Terry Southold Town Clerk Mir , , , ► APPEALS BOARD MEMBERS SCOTT L. HARRIS ��.;�- ��-,��:, ,v ,.. r- . `, a.�,�_�� . ,:•_ , .� Supervisor Gerard P. Goehringer, Chairman Charles Grigonis, Jr. Town Hall, 53095 Main Road Serge Doyen, Jr. P.O. Box 1179 Joseph H. Sawicki Southold, New York 11971 James Dinizio, Jr. BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 November 28, 1990 J. Kevin McLaughlin, Esq. William H. Price, Jr. , Esq. 828 Front Street P.O. Box 803 Greenport, NY 11944 Re: Application of Michael Cholowsky - Variance Gentlemen: In accordance with your request, the above application has been = filed, and the receipt for same is attached. It has, however, been noted that the Z.B.A. questionnaire and SEQRA forms have not been signed and a Notice of Disapproval has not been issued by the Building Inspector. Please complete and sign the attached forms and return them to. our office as early as possible together with a copy of the Notice of Disapproval from the Building Inspector. (Mr. Lessard has advised us that if you apply direotly to him, he will issue a Notice -of Disapproval based upon a letter from you with attached site plan map showing the golf course and its related uses rather than completing a building permit application. ) Also, Mr. Cholowsky .was in today and it is believed that he would like to apply for the Special Exception application 'at the same time because time is of the essence to him in this . project. Attached is a Special. Exception application and neighbor notice form which are necessary (together with a $150.00 filing fee) should. you choose to file the Special . Exception now. Please advise us of your position in this regard. Upon receipt of the above requested forms and disapproval together with written property owners authorization, this matter . . is expected to be for public hearing on the variance at our , next hearings calendar (advertised during December) . Page 2 - November 28, 1990 To: J. Kevin McLaughlin, Esq. Re: Application of Michael Cholowsky Please don't hesitate to call our office if you have any questions .concerning this matter. Very truly yours, GERARD P. GOEHRINGER C I Enclosures in a ow: cc: Mr. Michael Cholowsky P.S. Please also furnish six prints of the site plan map (only one was filed with us) . Thank you. _ 3 TOWN CLERK TOWN OF SOUTHOLD ® 37575 Suffolk County, New York 516 - 765-1801 Southold, N. Y, 11971 a 19 4 1t1ECEIYED F _ �� CV UG ld Dollars 8--------------- — For Judith T. Terry, Town Clerk APPEALS BOARD MEMBERS = -% j ,� . SCOTT L. HARRIS . Supervisor Gerard P. Goehringer, Chairman a�A Charles Grigonis, Jr. l Town Hall, 53095 Main Road Serge Doyen, Jr. P.O. Box 1179 Joseph H. Sawicki Southold, New York 11971 James Dinizio, Jr. _ BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 November 28, 1990 J. Kevin McLaughlin, Esq. William H. Price, Jr. , Esq. 828 Front Street P.O. Box 803 Greenport, NY 11944 Re: Application of Michael Cholowsky - variance Gentlemen: In accordance with your request, the above application has been = filed, and the receipt for same is attached. It has, however, been noted that the Z.B.A. questionnaire and SEQRA forms have not been signed and a Notice of Disapproval has not been issued by the Building Inspector. Please complete and sign the attached forms and return them to our office as early,as possible together with a copy of the Notice of Disapproval from the, Building Inspector. (Mr. Lessard has advised us that if you apply directly to him, he will issue a Notice of Disapproval based upon a letter from you with attached site plan map showing the golf course and its related uses rather than completing a building permit application. ). Also, Mr. Cholowsky was in today and it is believed that he would like to apply for the Special Exception application 'at. the same time because time is of the essence to him in this project. Attached is a Special Exception application and neighbor notice form which are necessary (together with a $150.00 filing fee) should you choose to file the Special Exception now. Please advise us of your position in this regard. Upon receipt of the above requested forms and disapproval together with written property owners authorization, this matter is expected to be held for public hearing on the variance at our . next hearings calendar (advertised during December) . Page 2 - November 28, 1990 To: J. Kevin McLaughlin, Esq. Re: Application of Michael Cholowsky Please don' t hesitate to call our office if you have any questions concerning this matter. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosures Linda Kowalski cc: Mr. Michael Cholowsky P.S. Please also furnish six prints of the site plan map (only one was filed with us) . Thank you. TOWN CLERK ~~ TOWN OF SOUTIIOLD Suffolk County, New York 516 - 765-1801 1�0 37575 ` r Southold, N. Y.'119711V- 9(,, 19 g ItrECEI.VED F t,(�/�c.,a� l�•� C�� ►��—off- - ldU — Dollar $ For 5 Td 1 f Page 2 - November 28, 1990 To: J. Kevin McLaughlin, Esq. Re: Application of Michael Cholowsky Please don' t hesitate to call our office if you have any questions concerning this matter. Very truly yours, GERARD P. GOEHRINGER CHAIRMAN Enclosures Linda Kowalski cc: Mr. Michael Cholowsky P.S. Please also furnish six prints of the site plan map (only one was filed with us) . Thank you. TOWN CLERK TOWN OF SOUTHOLD Suffolk County, New York 516 _ 765-1801 ® 37575 Southold, N. Y, 11971!t0,g(., 19RECEIVED C�"ld Dollars 8 (�: For 3 g APPEALS BOARD MEMBERS SCOTT L. HARRIS Supervisor Gerard P. Goehringer, Chairman cd' pti : �� Charles Grigonis, Jr. 1 " Town Hall, 53095 Main Road 1 1•<� Serge Doyen, Jr. P.O. Box 1179 Joseph H. Sawicki Southold, New York 11971 James Dinizio, Jr. . BOARD OF APPEALS Fax (516) 765-1823 Telephone (516) 765-1809 TOWN OF SOUTHOLD Telephone (516) 765-1800 November 28, 1990 J. Kevin McLaughlin, Esq. William H. Price, Jr. , Esq. 828 Front Street P.O. Box 803 Greenport, NY 11944 Re: Application of Michael Cholowsky - Variance Gentlemen: In accordance with your request, the above application has been - filed, and the receipt for same is attached. It has, however, been noted that the Z.B.A. questionnaire and SEQRA forms have not been signed and a Notice of Disapproval has not been issued by the Building Inspector. Please complete and sign the attached forms and return them to our office as early as possible ,together with a copy of the Notice of Disapproval from the, Building Inspector. (Mr. Lessard has advised us that if you apply directly to him, he will issue a Notice of Disapproval based upon a letter from you with attached site plan map showing the golf course and its related uses rather than completing a building permit application. ) Also, Mr. Cholowsky was in today and it is believed that he would like to apply for the. Special Exception application at- the same time because time is of the essence to him in this project.-Attached-is a Special Exception application and neighbor notice form which are necessary (together with a $150.00 filing fee) should you choose to file the Special . Exception now. Please advise us of your position in this regard. Upon receipt of the above requested forms and disapproval together with written property owners authorization, this matter is expected to be held for public hearing on the variance at our , next hearings calendar (advertised during December) . 1 I �o��FFo��oG O yJ, Southold Town Board of Appeals • �' MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.1., N.Y. 11971 TELEPHONE (516) 765-1809 Date: Dec . '13 ,. 1990 APPEALS BOARD �. MEMBERS S,E.Q.R.A. GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS,JR. UNLISTED ACTION SERGE DOYEN, JR. JOSEPH H.SAWICKI JAMES DINIZIO, JR. Notice of Determination of Non-Significance Appeal No. 3990 Project/Applicants: Cholowsky/Casala County Tax Map No. 1000- 55-1 -9 _ Location of Project: 3340 Horton ' s Lane , Southold , NY Relief Requested/jurisdiction before this Board in this Project: Establishment of a golf course facility This Notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold. An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects are likely to occur should be project be implemented as planned, and: { X } this Board assumes Lead Agency status and determines this project to be an Unlisted Action (uncoordinated) noting these findings: { } the project is proposed in an area with land contours 10 or more feet above mean sea level;- { } the area seaward of the proposed construction is bulkheaded; { } the project is proposed landward of existing structures; { } this Board does not wish to be Lead Agency since the area of jurisdiction is minimal and not directly related to new construction (such as nonconforming use variance or use permits) ; { } this Board wishes to assume Lead Agency status and urges coordinated written comments by your agency to be submitted within the next 20 days. For more information, please contact our office. Copies to: Planning Board, Town Trustees, N.Y.S. D.E.C. and/or Suffolk County Department of Health Services. Q u � . Southold Town Board of Appeals �5t�; MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I., N.Y. 11971 TELEPHONE (516) 765-1809 Date: Dec . '13 ,. '1990 APPEALS BOARD �- MEMBERS _.._ S.E.Q.R.A. GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS,JR. UNLISTED ACTION SERGE DOYEN, JR. JOSEPH H.IN SAWZIO,CKI JR. Notice of Determination of Non-Significance DAMES DINIZIO, JR. - Appeal No. 3990 . Project/Applicants: Cholowsky/Casola County Tax Map No. 1000- 55-1 -9 Location of Project: 3340 Horton ' s Lane , Southold , NY Relief Requested./Jurisdiction before this Board in this Project: Establishment of a golf course facility This Notice is issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 of the N.Y.S. Environmental Quality Review Act of the Environmental Conservation Law and Local Law #44-4 of the Town of Southold— An Environmental Assessment (Short) Form has been submitted with the subject application indicating that no significant adverse environmental effects are likely to occur should be project be implemented as planned, and: { X } this Board assumes Lead Agency status and determines this project to be an Unlisted Action (uncoordinated) noting these findings: - { k} the project is proposed in an area with land contours 10 or more feet above mean sea level; { } the area seaward of the proposed construction is bulkheaded; {x} the project is proposed landward of existing structures; { } this Board does not wish to be Lead Agency since the area of jurisdiction is minimal and not directly related to new construction (such as nonconforming use variance or use permits) ; { } this. Board wishes to assume Lead Agency status and urges coordinated written comments by your agency to be submitted within the next 20 days. For more information, please contact our office. Copies to: Planning Board, Town Trustees, N.Y.S. D.E.C. and/or Suffolk County Department of Health Services. MC � ATTORNEY AT LA 828 FRONT STREET,P.O.BOX 803 GREENPORT,NY 11944 (516)477-1016 November 5, 1990 Town of Southold Zoning Board of Appeals Main Road Southold, NY 11971 RE: APPLICATION OF MICHAEL CHOLOWSKY Gentlemen: Enclosed herewith please find: 1 . Application in triplicate 2 . Notice to Adjoining Property Owners 3. Environmental Assessment Form 4. ZBA Questionnaire 5. Surveys (4) 6 . Check in the amount of $150 . 00 representing filing fee If you have any questions, please do not hesitate to contact me. Very tru1 your , J. vi a in JKM:kk Enclosures 5 BOARD OF APPEALS, TOWN OF SOUTHOLD In the Matter or the Petition of MICHAEL CHOLOWSKY NOTICE TO to the Board of Appeals of the Town of Southold ADJACENT TO: PROPERTY OWNER MAHLON-DICKERSON EDWARD D. DART BCC RESTAURANT CORP. YOU ARE HEREBY GIVEN NOTICE: 1. That it is the intention of the undersigned to petition the Board of Appeals of the Town of Southold to request a (Variance) [circle choice] 1. 2. That the property which is the subject of the Petition is located adjacent to your property and,is des- cribed as follows: Easterly side of Horton Lane, Southold, NY; Suffolk County Tax Map No. 1000 - 055 - 01 - 008 3. That the property which is the subject of such Petition is located in the following zoning district: Agricultural-Conservation District 4. That by such Petition, the undersigned will request the following relief: Establishment, construction and operation of a golf driving range, a miniature golf course and office building for above. 5. That the provisions of the Southold Town Zoning Code applicable to the relief sought by the under- signed are Article III Section_ 10 0-31 . 7 (c) [ ] Section 280-A, New York Town Law for approval of access over right(s)-of-way. 6. That within five days from the date hereof, a written Petition requesting the relief specified above will be filed in the Southold Town Clerk's Office at Main Road Southold, New York and you may then and there examine the same during regular office hours. (516) 7�5-1809. 7. That before the relief sought may be granted, a public hearing must be held on the matter by the Board of Appeals; that a notice of such hearing must be published at least five days prior to the-date;of such hearing in the Suffolk Times and in the Long Island Travel er-Mattituck Watchman, newspapers published in the Town of Southold and designated for the publication of such notices;that you or your representative have the ,right to appear and be heard at such hearing. Dated: October 22, 1990 Petitioner Owners ' Names : Lorinda C. Casola Post Office Address PO. Box 803 Greenport, NY 11944 �@q,iY y,,,;�i4't{ 8!;'r c��4i?��v'tt•fi5r`x'� PROOF OF MAILING OF NOTICE ATTACH CERTIFIED MAIL RECEIPTS NAME ADDRESS MAHLON DICKERSON Southold, NY 11971 EDWARD D. DART Peconic Lane Peconic, NY . 11958 BCC RESTAURANT CORP. 817 Main Street Greenport, NY 11944 STATE OF NEW YORK ) COUNTY OF SUFFOLK) ss.: KATHY M. KLINGE residing at 1045 Washington Avenue, Greenport, New York being duly sworn, deposes and says that on the day of Noveinb:er , 19 90 , deponent mailed a true copy of the Notice set forth on the re- verse side hereof, directed to each of the above-named persons at the addresses set opposite their respective names;that the addresses set opposite the names of said persons are the addresses of said persons as shown on the current assessment roll of the Town of Southold; that said Notices were mailed at the United States Post Of- fice at Greenport ; that said Notices were mailed to each of said persons by (certified) (KsWud�_Nnail. -ram KA HY�—KLI� GE Sworn to before me this day off November ) 19 90 I Notary Public UNDA M.TONYES Notary Public,State of New York No.4942668.Suffol%Counttyy To Expires October 3,19�� ren (This side does not have' to be completed on form transmitted to adjoining property owners... ) TOWN OF SOUTHOLD, NEW YORK APPEAL .FROM DECISION OF BUILDING INSPECTOR APPEAL NO. r DATE ... ol............ .9�.... TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. 1 (We) MICHAEL CHOLOWSKY of 965 Brigantine Drive ..... ..... . .. .......... ................................ Name of Appellant Street and Number Southold New York HEREBY APPEAL TO ............................................................................................. ............................ Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO. .................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO ................................................................................. Name of Applicant for permit of ...................................................................... .... ........ """"'Street and Number Municipality State ( ) PERMIT TO USE ( ) PERMIT.FOR OCCUPANCY county Route 48 and 1. LOCATION OF THE PROPERTY ....HQ.ron„Lane Southold Agricultural-Conser- .................................... Street /Hamlet ing a" / Use District on Zoning Map vation District 1000 Section 055B1ock01 Lot 009Current Owner Lorinda C. Casola Mop No. Lot No. Prior Owner 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III Section 100-31. 7 (c) 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) ( X) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Low Chap. 62 Cons. Lows Art. 16 Sec. 280A Subsection 3 4. PREVIOUS APPEAL A previous appeal (has) btu X.Xk4 been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit ( ) request for a variance andwas made in Appeal No. ................................Dated ...................................................................... REASON FOR APPEAL ( ) A Variance to Section 280A Subsection 3 ( X) A Variance to the Zoning Ordinance is requested for the reason that Form zsi (Continue on other side) `i�.%�i.�'i.1 fius.�i..t;r.•"'ii�r�'i�.wl j � �a::;n� REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because it is economically unfeasible to establish a golf club or the like as permitted as a special exception under Section 100-31 (7) of the Code if same cannot be operated for a profit. This is especially true where the sole use proposed is the special exception and does not include the sale or establishment of residences. 2. The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because this property is directly across from a commercial establishment, i.e. , an automobile dealer- ship. The proposed use complements the nearest commercial use as opposed to the other residential area in the vicinity. It is further unique because unless the provision requiring that such an enter- prise be conducted not-for-profit is waived, it makes no sense - for the applicant to proceed with the cost and effort involved in applying for a special exception requiring both this Board and Planning Board approval. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because whether the enterprise is conducted as a not-for-profit enterprise or a profit enterprise, it will appear identical to anyone who uses same. W STATE OF NEW YORK COUNTY OF SUFFOLKj ss .Signf.0 r7e................................. Sworn to this ........../................................. day of....................October 19 90 . ......... .... ... .otary Pub .0 ......... ......... Notay Pdit Atft of N@wY** No.4E44M4r$uftk CM" Term EeP m Fdxvmy 29,1992 TOWN OF SOUTHOLD; NEW YORK APPEAL. FROM DECISION OF BUILDING INSPECTOR APPEAL NO. DATE ... ..........1..90.... TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. 1 (We) MICHAEL CHOLOWSKY of .,6 . Brigantine Drive ... .......... ................................ Name of Appellant Street and Number Southold New York . ................................................................. .......HEREBY APPEAL TO Mun icipa I ity Stote THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO. .......:............................ DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED TO . ................................................................................. Name of Applicant for permit of .................................................................................................................................. Street and Number Municipality State ( ) PERMIT TO USE ( )- PERMIT-FOR OCCUPANCY oun Rout&_ 40 and 1. LOCATION OF THE PROPERTY ....H.9.r on ,Lane Southold Agricultural-Conser- ............. ............................................... Street /Hamlet % Use District on Zoning Map vation District 1000 Section 05581 ock01 Lot 009Current Owner Lorinda C. Casola ...............................................................................:. Map No. Lot No. Prior Owner 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III Section 100-31 . 7 (c) 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) ( X) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) •A VARIANCE due to lack of access (State of New York Town Law Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 4. PREVIOUS APPEAL A previous appeal (has) ftV.X90 been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a .special permit ( ) request for a variance andwas made in Appeal No. ................................Dated ...................................................................... REASON FOR APPEAL ( ) A Variance to Section 280A Subsection 3 ( X) A Variance to the Zoning Ordinance is requested for the reason that Form zB1 (Continue on other side) ..:ii'i.;t•..,�C.iiil 31 REASON FOR APPEAL Continued 1. STRICT APPLICATION OF THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because it is economically unfeasible to establish a golf club or the like as permitted as a special exception under Section 100-31 (7) of the Code if same cannot be operated for a profit. This is especially true where the sole use proposed is the special exception and does not include the sale or establishment of residences. 2. The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because this property is directly across from a commercial establishment, i.e. , an automobile dealer- ship. The proposed use complements the nearest commercial use as opposed. to the other residential area in the vicinity. It is further unique because unless the provision requiring that such an enter- prise be conducted not-for-profit is waived, it makes no sense for the applicant to proceed with the cost and effort involved in applying for a special exception requiring both this Board and Planning Board approval. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because whether the enterprise is conducted as a not-for-profit enterprise or a profit enterprise, it will appear identical to anyone who uses same. STATE OF NEW YORK ) ss ................................. COUNTY OF SUFFOLK) Signature Sworn to this ........../..... .......................... day of.................October...................... 19 90 ............ ........ I...... ... . ............ ......... otary Pub WILL"H.PitICB.•� Notary Pj*ft 8uta ef Nw llbrk No.4844944.Suftk C4Wft '� Tum EVk"Fibnwy 281,1992 �'v tc 6 TOWN OF SOUTHOLD, IN WKE D APPEAL ,FROM DECISION OF BUILDING INSPECTOINOV 26 s APPEAL NO. 3 c 6 Southold Town lerk DATE ..1��.:........�.9�.... TO THE ZONING BOARD OF APPEALS, TOWN OF SOUTHOLD, N. Y. 1 (We) NICHAEL CHOLOWSKY of 965 Brigantine Drive. ... . .. .... . .. . ... Name of Appellant Street and Number Sou.thold. New York HEREBY APPEAL TO .... ..................................................................... ......... ....... Municipality State THE ZONING BOARD OF APPEALS FROM THE DECISION OF THE BUILDING INSPECTOR ON APPLICATION FOR PERMIT NO. .................................... DATED ...................................................... WHEREBY THE BUILDING INSPECTOR DENIED. TO ................................................................................. Name of Applicant for permit of .................................................................................................................................. Street and Number Municipality -State ( ) PERMIT TO USE PERM.IT.FOR.00CUPANCY Count Route 1. LOCATION OF THE PROPERTY ...Ho.On.-Lane Southold Agricultural-Conser- ......................................................................... Street /Hamlet / Use District on Zoning Map vation District 1000 Section 055131ock01 Lot 009Current Owner Lorinda C. Casola ...................................................................... /vlop No. Lot No. Prior Owner 2. PROVISION (S) OF THE ZONING ORDINANCE APPEALED (Indicate the Article Section, Sub- section and Paragraph of the Zoning Ordinance by number. Do not quote the Ordinance.) Article III ' Section 100-31 . 7 (c) 3. TYPE OF APPEAL Appeal is made herewith for (please check appropriate box) ( X) A VARIANCE to the Zoning Ordinance or Zoning Map ( ) A VARIANCE due to lack of access (State of New York Town Low Chap. 62 Cons. Laws Art. 16 Sec. 280A Subsection 3 ( ) 4. PREVIOUS APPEAL A previous appeal (has) &fflXXU0 been made with respect to this decision of the Building Inspector or with respect to this property. Such appeal was ( ) request for a special permit ( ) request for a variance andwas made in Appeal No. ................................Dated ...................................................................... REASON FOR APPEAL ( ) A Variance to Section 280A Subsection 3 ( X) A Variance to the Zoning Ordinance is requested for the reason that Form ZB1 (Continue on other side) JIL r ip9�'rA i'Oit4r�'EV.'6 m FjF REASON FOR APPEAL TI (5 Continued 1. STRICT APPLICATION,OFi THE ORDINANCE would produce practical difficulties or unneces- sary HARDSHIP because it is economically unfeasible to establish a golf :•'Sy"�t n34..,.,,Y� R -tin 7 F.�•A club or the likeias permittbd-`as a special exception under Section 100-31 (7) of the Codeeif same cannot be operated for a profit. This is especially true where the sole use proposed is the special exception and does not include the sale or establishment of residences. 2. The hardship created is UNIQUE and is not shared by all properties alike in the immediate vicinity of this property and in this use district because this property is directly across from a commercial establishment, i.e. , an automobile dealer- ship. The proposed use complements the nearest commercial use as opposed. to the other residential area in the vicinity. It is further unique because unless the provision requiring that such an enterm . prise be conducted not-for-profit is waived, it makes no sense for the applicant to proceed with the cost and effort involved in applying for a special, exception requiring both this Board and Planning Board approval. 3. The Variance would observe the spirit of the Ordinance and WOULD NOT CHANGE THE CHARACTER OF THE DISTRICT because whether the enterprise is conducted as a not-for-profit enterprise or a profit enterprise, it will appear identical to anyone who uses same. STATE OF NEW YORK ) ss ................................. COUNTY OF SUFFOLK) Signature Sworn to this ..........�............................. day of.................October...................... 19 90 otar Pub c WILNAM IL PHNUM Noary h+bliar�dNrwlfb�'Ic ft 4a44M4,$Mft&00" Term Fsk=y 2%1s92 ,14.16 4(21871—Text12 I.D.NUMBER � � 1•\/1/[E 0� R � I� PROJECT 617.21 L . �[-j(�R Appendix C State Environmental Quality It rev DEC SHORT ENVIRONMENTAL ASSE IENT FORM For UNLISTED ACTIONS C n y PART 1—PROJECT INFORMATION (To be completed by Applicant or Project sponsor: 1. APPLICANT(SPONSOR 2. PROJECT NAME Michael Cholowsky 3. PROJECT LOCATION: Municipality Southold County Suffolk 4. PRECISE LOCATION(Street address and road intersections,prominent landmarks,etc.,or provide map) 1231 ± north of County Route 48 with the easterly side of Horton Lane 5. IS PROPOSED ACTION: LPNew ❑Expansion ❑ModificatlonlalteratIon 6. DESCRIBE PROJECT BRIEFLY: 7. AMOUNT OF LAND AFFECTED: Initially acres Ultimately acres B. WILL PROPOSED ACTION COMPLY WITH EXISTING'ZONING OR OTHER EXISTING LAND USE RESTRICTIONS7 ❑Yes Ulo If No,describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? r ❑Residential ❑Industrial Commercial Describe: El Agriculture ❑Park/Forest/Open space ❑Other 10. DOES ACTION INVOLVE A PERMIT APPROVAL,OR FUNDING,NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY(FEDERAL, STATE OR LOCAL)? 43Yes El, No If yes, list agency(s)and permitlapprovals 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? ❑Yes Plo If yes,list agency name and permit/approval 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? ❑Yes ❑No CERTIFY THAT THE INFORMATION PR VIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicant/sponsor.. name: 1 C 1 C �ok Dale: 10/ /9 0 Signature: L U v If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment OVER 1 (Continued on reverse side) The N.Y.S. Environmental Quality Review Act requires submission 'of this form, and an environmental review will be made Ly this board before any action is taken. SHORT ENVIRONMENTAL ASSESSMENT FORM INSTRUCTIONS: (a) In order to answer the questions in this short EAF it is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be 'sig- nificant and completed Environmental Assessment Form is necessary, (c) If all questions have been answered No it is likely that the project is not significant, (d) Environmental Assessment 1- Will project result in a large physical change to the project site or physically alter more than 10 acres of land? _Yes X NO 2. Will there be a major change to any unique or unusual land form on the site? _Yes X No 3. Will project alter or have a large effect on an existing body of water? _Yes X No 4. Will project have a potentially large impact on groundwater quality? • _Yes XNo 5- Will project significantly effect drainage flow on adjacent sites? Yes X No 6. Will project affect any threatened or endangered plant or- animal species? Yes X No 7. Will project result in a major adverse effect on air quality? __Yes X No 8- Will project have a major effect on visual char- acter of the community or scenic views or vistas known to be important to the community? _Yes X No 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological importance or any site designated as a critical envircnmental area by a local agency?' ' _Yes X No 10. Will project have a major effect on existing or future recreational opportunities? Yes X No 11- Will project result in major traffic problems or cause a major effect to existing transportation systems? _Yes X No 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? Yes X ._._ �No 13. Will project have any impact on public health or safety? Yes X No 14. Will project affect the existing community by directly causing a growth in permanent popula- tion of more than 5 percent over a one-year eyes X period or have a major negati eleffect on the No character of the co unity o n'ighborhood? 15. Is there pub i e•nt r c n .erning the project? _Yes X No Preparer's Si ure: Representing: Mid 8 Ch OW I�71 zaA y/75 Date: 10, 90 FORM NO.3 TOWN OF SOUTHOLD BUILDING DEPARTMENT DEC I ) 1990 i TOWN CLERK'S OFFICE SOUTHOLD,N.Y. NOTICE OF-DISAPPROVAL Date To . .B:a.$ . . . -. .. . . . . . . . . . . . . . . . PLEASE TAKE NOTICE that your application dated . . ! • , , , , , , •, 19 for permit to c. ', o.. at u Location of Property .4�, . . • , , , , , , , g, , , ,�,�,�, ��` „ . House No. Street .Hamlet County Tax Map No. 1000 Section . . .©. . . . . . Block . . . . . . . . . . . Lot . . ©. 1 . . . . . . . . Subdivision . . . . . . . . . . . . . . . . . Filed Map No. . . . . . . . . . . . . . . . Lot No. . . . . . . . . . . . . . . . . . is returned herewith and disapproved on the following grounds . 0. ? _ / ;; �•7 C�- 4. Qfr . . . . . . . . . . . . . . . . . .. . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building Inspector RV 1/80 r . The N.Y.S. .Envi nental Quality Review Act requires submission of this form, and an anviro•nmental review will be made Ly this i)oard before any action is taken. SHORT ENVIRONMENTAL ASSESSMENT FORM INSTRUCTIONS: ; (a) , In order to answer the questions in this short EAF it. is assumed that the preparer will use currently available information concerning the project and the likely impacts of the action. It is not expected that additional studies, research or other investigations will be undertaken. (b) If any question has been answered Yes the project may be sig- nificant and completed Environmental Assessment Form is necessary. (c) If all questions have been answered No it .is likely that the project is not significant. (d) Environmental Assessment J , 1. Will project result in a large physical change to the project site or physically alter more than 10 acres of land? Yes X NO 2. Will there be a major change to any ,unique ort unusual land form on the site? Yes X No " 3. Will project alter or have a large effect on an existing body of water? Yes X No 4. Will project have a potentially large- impact on groundwater quality? Yes X No 5. Will project significantly effect drainage flow X on adjacent sites? _Yes No 6.' Will project affect any threatened or endangered plant or animal species? Yes X No 7. Will project result in a major adverse effect on air quality? Yes. X No 8. Will project have a major" effect on visual char- acter of the community or scenic views or vistas known to be important to the community? Yes XNo . 9. Will project adversely impact any site or struct- ure of historic, pre-historic, or paleontological importance or any site designated as a critical envircnmental area by a local agency? Yes X No.,: 10. Will project have a major effect on existing or future recreational opportunities? Yes X No 11. Will project result in major traffic problems or cause a major effect to existing transportation,., systems? Yes X No 12. Will project regularly cause objectionable odors, noise, glare, vibration, or electrical disturb- ance as a result of the project's operation? _Yes .X No 13. Will project have any impact on public health or safety? _Yes X No 14. Will project affect the existing community by directly causing a growth in permanent popula- tion of more than 5 percent over a one-year —Yes X No period or have a major negative effect on the character of the community or neighborhood? 15. Is there public controversy concerning the project? _Yes X No Preparer's Signature: Representing: Michael Cholowsky Date. 10 90 ZHA v/75 } r ' 14-16-4(21871—Text 12 PROJECT I.O.NUMBER 617.21 ti . SCQR 4 Appendix C State Environmental Quality Review SHORT ENVIRONMENTAL ASSESSMENT FORM For UNLISTED ACTIONS Only PART 1—PROJECT INFORMATION (To be completed by Applicant or Project sponsor) 1. APPLICANT/SPONSOR 2. PROJECT NAME Michael Cholowsky 3. PROJECT LOCATION: Munlcipallty Southold County Suffolk 4. PRECISE LOCATION(Street address and road intersections,prominent landmarks,etc.,or provide map) 123 ' ± north of County Route 48 with the easterly side of Horton Lane S. IS PROPOSED ACTION: LPNew ❑Expansion ❑Modificatlonlalleratlon 6. DESCRIBE PROJECT BRIEFLY. 7. AMOUNT OF LAND AFFECTED: Initially acres Ultimately acres 6. WILL PROPOSED ACTION COMPLY WITH EXISTING ZONING OR OTHER EXISTING LAND USE RESTRICTIONS? ❑Yes ENO It No,describe briefly 9. WHAT IS PRESENT LAND USE IN VICINITY OF PROJECT? Residential ❑Industrial �❑Commercial ❑Agriculture ❑Park/Forest/Open space ❑Other Describe. 10. DOES ACTION INVOLVE A PERMIT APPROVAL,OR FUNDING.NOW OR ULTIMATELY FROM ANY OTHER GOVERNMENTAL AGENCY(FEDERAL, STATE OR LOCAL)? 43Yes ❑No It yes, list agency(s)and permit/approvals 11. DOES ANY ASPECT OF THE ACTION HAVE A CURRENTLY VALID PERMIT OR APPROVAL? ❑Yes Ef10 If yes,list agency name and permitlapproval 12. AS A RESULT OF PROPOSED ACTION WILL EXISTING PERMIT/APPROVAL REQUIRE MODIFICATION? ❑Yes ❑No CERTIFY THAT THE INFORMATION PROVIDED ABOVE IS TRUE TO THE BEST OF MY KNOWLEDGE Applicantisponsor name: Michael Cholowsky - Date: 10/ /9 0 Signature: If the action is in the Coastal Area, and you are a state agency, complete the Coastal Assessment Form before proceeding with this assessment . OVER D DEC 1990 I QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION A. Please disclose the names of the' owner(s) and' any other individuals (and entities) having a financial interest in the subject premises and a description of their interests: (Separate sheet may be attached. ) Lorinda C. Casola Owner Michael Cholowsky Tenant, with purchase option B. Is the subject premises .listed on the real estate market for sale or being shown to prospective buyers? ( } Yes ( X ) No. (If Yes, please attach copy of "conditions" of sale. ) C. Are there any proposals to change or alter land contours? ( } Yes (X} No D. 1. Are there any areas which contain wetland grasses? No 2. . Are .the wetland areas shown on the map submitted with . this application? No 3. Is the property bulkheaded between the wetlands area and the upland building area? No 4. If your property contains wetlands or pond areas, have you contacted the Office of the Town Trustees for its determination of jurisdiction? No E. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? "N/A (If not applicable, state "N.A." ) F. Are there any patios, concrete barriers, bulkheads or fences which exist and are not shown on the survey map that you are submitting? None If none exist, please state "none.'. G. Do you have any construction taking place. at this time concerning your premises? None If` yes., please submit a copy of your building permit and map as approved by the Building Department. If none, please. state. H. . Do you or any co-owner also own other land close to this parcel? . No If yes, please explain where or submit copies - of deeds. I. Please list present use or operations conducted. at this parcel -acant L i and proposed oifwLivi range, miniature golf course,..batting cage, ancill r sales a ientals .and restaurant. / (9&X6) ri!_ d ig at a and Date ' 3/ 7, 10/901k § 97-13 WETLANDS § 97-13 TOWN — The Town of Southold. TRUSTEES — The Board.of.Trustees of the Town of Southold. [Added 6-5-84 by L.L. No. 6.19841 WETLANDS [Amended 8-26-76 l y L.L. No.2-1976; 3-26- 85 by L.L.No.6-1985]: 2' 1IDAL WETLANDS: (1) All lands generally covered or intermittently cov- ered with,or which border on,tidal waters,or lands lying beneath tidal waters, which at mean low tide are covered by tidal waters to a maximum depth of five (5) feet, including'but not limited to banks, bogs, salt marsh, swamps, meadows, flats or other low lying lands subject to tidal action; (2) All banks, bogs, meadows, flats and tidal marsh subject to such tides and upon which grows or may grow some or any of the following. salt hay, black grass, saltworts, sea lavender, tall cordgrass, high bush, cattails, groundsel, marshmallow and low march cordgrass;and/or (3) All land immediately adjacent to a tidal wetland as defined in Subsection A(2) and lying within seven- ty-five (75) feet .landward of the most,landward edge of such a tidal wetland. B. FRESHWATER WETLANDS: (1) "Freshwater wetlands" as defined in Article 24, Ti- tle 1, § 24-0107, Subdivisions 1(a) to 1(d) inclusive, of the Environmental Conservation Law of the State of New York;and (2) All land immediately adjacent to a"freshwater wet- land,"as defined in Subsection B(1)and lying with- Jn seventy-five(75).feet landward of the most land- ward edge of a"freshwater wetland." 9705 2.25-es QUESTIONNAIRE FOR FILING WITH YOUR Z.B.A. APPLICATION A. Please disclose the names of the owner(s) and any other individuals (and entities) having a financial interest in the subject premises and a description of their interests: (Separate sheet may be attached. ) B. Is the subject premises listed on the real estate market for sale or being shown to prospective buyers? { } Yes { } No. (If Yes, please attach copy of "conditions" of sale. ) C. Are there any proposals to change or alter land contours? { } Yes ( ) No D. 1. Are there any areas which contain wetland grasses? 2. Are the wetland areas shown on the map submitted with this application? 3. Is the property bulkheaded between the wetlands area and the upland building area? 4. If your property contains wetlands or pond areas, have you contacted the Office of the Town Trustees for its determination of jurisdiction? E. Is there a depression or sloping elevation near the area of proposed construction at or below five feet above mean sea level? (If not applicable, state "N.A. ") F. Are there any patios, concrete barriers, bulkheads or fences which exist and are not shown on the survey map that you are submitting? If none exist, please state "none." G. Do you have any construction taking place at this time 1 .concerning your premises? If yes, please submit a copy of your building permit and map as approved by the Building Department. If none, please state. H. Do you or any co-owner also own other land close to this parcel? If yes, please explain where or submit copies of deeds. I. Please list present use or. operations conducted at this parcel and proposed use Authorized Signature and Date 3/87, 10/901k § 97-13 WETLANDS § 97-13 TOWN — The Town of Southold. TRUSTEES — The Board of Trustees of the Town of Southold. [Added 6-5-84 by L.L. No. 6-19841 WETLANDS [Amended 8-26-76 by L.L. No. 2-1976; 3-26- 85 by L.L.No.6-1985]: -iT L� v A. TIDAL WETLANDS: (1) All lands generally covered or intermittently cov- ered with,or which border on,tidal waters,or lands lying beneath tidal waters, which at mean low:tide are covered by tidal waters to a maximum depth of five (5) feet, including but -not limited to banks, bogs, salt marsh, swamps, meadows, flats or other low lying lands subject to tidal action; (2) All banks, bogs, meadows, flats and tidal marsh subject to such tides and upon which grows or may grow some or any of the following. salt hay, black grass, saltworts, sea lavender, tall cordgrass, high bush, cattails, groundsel, marshmallow and low march cordgrass;and/or (3) All land immediately adjacent to a tidal wetland as defined in Subsection A(2) and lying within seven- ty-five (75) feet landward of the most landward edge of such a tidal wetland. B. FRESHWATER WETLANDS: • (1) "Freshwater wetlands" as defined in Article 24, Ti- tle 1, § 24-0107, Subdivisions 1(a) to 1(d) inclusive, of the Environmental Conservation Law of the State of New York; and (2) All land immediately adjacent to a"freshwater wet- land,"as defined in Subsection B(1)and lying with- in seventy-five(75) feet landward of the most land- ward edge of a"freshwater wetland." 9705 2-25-85 - QUESTIONNAIRE TO BE COMPLETED NND SUBMITTED WdTI1 YOUR APPLIC T IW FORI-IS TO THE BOARD uN ALIPEALIS Please complete, sign and return to the Office of the Board of Appeals with your completed application forms. If "Yes" is answered to any questions below, please be sure to depict these areas on your survey (or certified sketch) , to scale, and submit other supporting documenta- tion. 1. Are there any proposals to change or alter land contours? Yes No 2.a)Are there any areas which contain wetland grasses? (Attached is a list of the wetland grasses defined by Town Code, Ch. 97 for your reference. ) Yes No b) Are there any areas open to a waterway without bulkhead? Yes �Io 3. Are there existing structures at or below ground level, such as patios , foundations, etc? Yes No 4. Are there any existing or proposed fences, concrete barriers , decks, etc? Yes 050 5. If project is proposed for an accessory building or structure, is total height at more than 18 feet above average ground level? State total: ft. Yes No 6. If project is proposed for principal building or structure, is total height at more than 35 feet above average ground level? State total : . . . . . . . ft. Yes NO 7. Are there other premises under your ownership abutting this parcel? If yes , please submit copy of deed. Yes No 8. Are there any building permits pending on this parcel (or abutting land under your ownership, if any) ? Yes No State Permit # and Nature: 9. Do state whether or not applications are. pending concerning these premises before any other department or agency (State, Town, County, Village, etc. ) : Planning Board Yes No Town Board Yes No Town Trustees Yes No County Health Department Yes No Village of Greenport Yes No N.Y.S.D.E.C. Yes No Other Yes No 10. Is premises pending a sale or conveyance? If yes, please submit copy of names or purchasers and conditions of sale. (from contract) Yes No 11. Is new construction proposed in the area of contours at 5 feet or less as exists? Yes No 12. If new construction is proposed in an area within 75 feet of wetland grasses, or land area at an eleva- tion of five feet or less above mean sea level, have , you made application to the Town Trustees for an inspection for possible waiver or permit under the requirements of Ch. 97 of the Town Code? Yes No 13. Please list present use or operations conducted upon the subject property at this time and proposed Please submit photographs For the record. I certify that the above statements are true and are being submitted for reliance by the Board of Appeals in considering "my application. Signature (Property Owner) Authorized Agent) 1/88 Y —STATE 0 f NE W PORK R E A L P R O P E R T Y S Y 3 COUTY — SUFFOLK C R 0 S S R E F E R E N C E L I S YY —TOWR_C F SOl1THOL0 PAR SC DENTIFICATION SWIS — 473889 Y C K — — — 1998 — t,,4RC=L—ID R D M E LAND — 54.—9-4 C SK CONNOLLY CHARLES B W 54.-9-5 C TD DOMURAT HELEN 0 700 `+ �.54_ —9-b— C -TW . BURK -RONALD & WF x ; uu 54. —9-7 C UP COONEY J AMES T R ANO 700 C VI GANASSA CHARLES A & WF t... ;e 54. -9-9 C WB RIZZO FRANK JR & WF 800 54:=9=1 C QE WISBA_UER EDWARD WF >54. -9-12. 1 C SM VOLZ WILLIAM R & ANO 10,100 8i TT�54.9=1 3 C SJ MURTA GH MARY^ E_ 54.-9-14 C TC PURTELL GERARD D & WF 600 5-4. -9' TV GUERRIN JEROME I WF 500 54. -9-16 C UO MADAYAG MANUEL A & WF 700 =='° PAR A N . • 54. -9-18. 2 C XS COCHRAN CARLISLE E JR 1,200 60 �54_-9-19,7 C XP DILLENBECK RONALD B • 1't 54.-9-20 C OW RIZZO JO ANN 700 C LQ DONOPRIA CORINNE • _ 55.-1 -2 C MJ DONOPRIA RICHARD J & H IP600 • 6• �30UNATSOS EVANGELOS 9 lo,400 • 55.-1 -3_3 C PQ BOUNATSOS EVANGELOS & 1,200 1i 55:=1 =3=4 C 'QM -MItLIGAN RICHARD V 1 ,6 • 55.-1-4 C NV TOWN' OF SOUTHOLD 200 GRIGONIS ANTONE J JR , • 55.-1 -6 C PH HAMAN WILLIAM & WF 500 4• C QA VOLOSIK STANLEY J 1 ,4 • 55. -1 -8V, vf QT DICKERSON MAHLON D & 0 10,700 100 SO.L} IO / RI_ . - -4.'00 • 55. -1 -11_1t� VC NE DART EDWARD D 3,100 ` 3• I 55. -1 -11. 2 C OA DART EDWARD D 3,100 • 55.-1 -11. 3 C OW DART EDWARD D 3,100 3, ��=—��1• C PS DART EDWARD D . � .5, 55.-2-1 .1 C NC LANDSBERG STEVEN & SHE 21000 2• C _NY BORN FRANKLYN J & COLE 3 U U • =y {� 55.-2-1 .3 C OU RANDAZZO BLDG CO 2,200 2• - - P D PIRO CARMIidE h1 . • -4. 55. -2-2 C MZ SALMON ALBERT & HELEN 1,300 40 - _ 55_-2-4_1. C PH CANNING ARLETTE B 600 3• _ 5=2-=4�2 C QD- SAWICKI JOSEPH J R & MA _ J4 • 55.-2-5-1 C QA WARD RICHARD G 11001) 1� - - WARD SUSAN C , 55.-2-5.3 C RS WARD RICHARD G & WF 1 ,600 so CAN ILL GREGORY C79 WF 55.-2-7 C QQ SARAGAS MICHAEL 7,100 9• TX WIEDER}�AN L NA &FORS ..(6 55.-2-8.4 C UT LILL.IS GARY A & WF 2,300 7� V _r Ole A_T—Nr�R , • 55.-2-8.6 C WL GRIGONIS ROBERT A & 1 ,800 6' s =9�5-2 . ----9: - - S� D f CSC Y '. 55.-2-1 p C MF CARROLL JOHN H & ANO 6,900 8• D 0'�'_'�: TAT OF NEW PORK R E A L P R O P E R T Y S Y S T E COUNTY — SUFFOLK C R 0 S S R E F E R E N C E L I S T I N TOWN OF SOUTHOLD P ARCEL IDENTIFICATION SEQUEN. SWIS 473889 Y CK - - - 1988 - - - PARCECD LAND 63=1 C NL WINTERLING HARRYF • 63.-1 -5 C OE GRATTAN DANIEL P 200 200 - — C OX GRATTAN BETTY 63.-1 -7 C PQ WEISSMAN ALLAN & WF 300 3,700 63=—T=8_ Rf MALONE lETI7IA G R08 1• 0. • 63. -1 -8.2 C SB GRATTAN DANIEL P 200 200 C RS H RT ANNA M • • 63.-1 -10 C LF PUDGE CORP 5,000 37,700 1 -11 __ __ _._ _._ _ _. .- . _.C`LY-GREGORY NORMA - 700 63.-1 -12 C MR HACKERT WALTER & JEROM 2,100 5.600 �01��0-Sfi�CS—I C • 63.-1 -14 C OD WELZ JANE E 400 2.200 ------------------------- 63. -1 -16 C PP BATUYIOS NICHOLAS H 2,300 2,300 z--r _ __ 63;=1 =1 � _. .__ . C .ST__ C & ._C ASSOCIATES • 63.-1 -19 C RU NORTH FORK PROFESSIONA 4,400 28,900 — 63.- _ C LX WINDSWAY OF SOUTHOLD A---------1—,700 10,51)(Y 63.-1 -21 C MQ GRASECK CARL J & CAROL 1 ,700 6,000 b3:-'1=22 C J WALtALE JOS�PN F PHY • D 63. -1-23 C OC PERRON LEONE M 2,400 8,000 -- -- _ C- OV ' BOSS JOHN & -ANO 63.-1 -25 C PO CHARNEWS DANIEL ' $ WF 6,800 11,200 Q' C QH FISHER DONALD G 0 � 4,300 63.-1 -27 C RA GREENFIELD MURRAY 500 --� =3 I AVER HART ES ORO , • DT 63.-1 -32 C 08 SLIVON.IK FRANK 1,600 71100 ._.'.-6.T-.._._��3 3 ._ . .. .C__-O U__E C-O N O M D U NICK K & A N O -_ _ - - 4 0 • D- 63. -1 -34 C PN GAGEN SUSAN 1 .600 WOO LW TOWN OF SOUTHOLD D 63.-2-2 C. MP KUJAWSKI DANIEL 700 .3.200 C NI GRATTAN CH RLES E $ OR r • OD 63. -2-4 C 08 GRATTAN ,JEROME F - 500 S00 -g32_ C OU `DUf FY ALYCE M00 6,100 63. -2-6 C PN GRATTAN JEROME F & ' ALI 3,200 QQ - 00 6.3. -2-7.2 C RY WEISENT FRANCIS & WF 800 i,6D 3=2=g C QZ STRASSER EDWARD F $ WF DO 63. -2-9 C RS SIMMONS DEIRDRE 700 4,300 m . _ .... __ . C C V W — J 0AC AR - . 63.-2-11 C MO SANTACROCE HENRY SR & 500 3r800 63. — —12 t NH , D RUSKOWSKI DOROTHY 63. -2-13 C OA GRATTAN PETER JR & WF 300 3r800 �3_2_ C OT RAGUSIN JULIUS �4Jf Q�f3,800 63. -2-15.1 C QI ZUKAS WILLIAM & GRACE 600 3,800 _ -- _. C RB OSTRO§KI MARY 63.=2T16.1 2,700 63.-2-17 C GY FALKOWSKI ALFRED C $ W 600 �zo0 --63—2-1 RR B OWId SAPiDRA 4,700 63.-7-19 C SK ALBERTSON ALBERT W JR 500----5;'900 63:-2---TO— iJ—TAR AB�SC O H7-A-70Hf�T-�-61 63.-2-21 C NG JARUSIEWIC MARY 500 3•S 'a W A R D T--P A-R C-E-L-S -(ACTIVE =i a V ak �� ` ,, s,�,;;�. fit•' � � __�_ ZW OWN Islas Al mew � �i��`�f\��®=' •. �.�., yew• � ♦�i A s � � i F"�'" �,rrr,o� a1�1�1�■ ,�jj ♦ � - a: r ��-Vic+� � `�► rr� �c''•��-''rr��rQn,yam'�,i�M M_ W.rr ti ism �•t•'�// �I�+-J� ;�� .,�,`� wig' �� III s•�•FA �i • z .LINE ........ 1. PARCEL NO cr sic No=.. IAMI 2111.1 I.S 1.2A(,Ip "26.1 'IF 5K. o,!.e A., 5.2 C ILI Abi too A(.1 FF to sof SAI-I o'el. OF 2.5 2. rYv OUTH L 4,1 T k A to It C) it ON I It.2 A 10 to At') 14 ? to ts 1.2 It- lok s.s., FOR PARCEL t No M Me O No o55-0`OO9 AN Let o 17 1 is MR A t6l • 2.3 To 24 25 FOR PARCEL No. -017 24 EX McN,�o5s-ot, 1.5AIe TOWN OF .-OLD IA1.1 II-at-11, 3 IlLoAlcl 25 Ie—i it 7.5A Jet 1.5 wi —LAGE, 3EC.o 3.ol 0 -Io 7II2 3 LIPA10 Ilk pll 5,12rP I-hk P 4.19.0 4.1 A 10 AM No."o ME Me. WM06 IP 3- A y&-I: to TOWN OF SOUTHOLD PROPERTY' RECORD CARD ;. OWNER STREET VILLAGE DIST.1 SUB. . �� FORMER OWNER r '� N E a o ACR. 8S Gt a -c //L--edc� : S W TYPE OF BUILDING >'- CoE' ,o BCC RES. SEAS. VL. FARM r i COMM. CB. MICS. Mkt. Value LAND IMP. TOTAL DATE REMARKS D00 O I - 3 o Susuti ' i v - >. 2-1 o -20 s 7o AGE BUILDING CONDITION NEW NORMAL BELOW ABOVE _ . FARM Acre Value Per Value Acre Tillable FRONTAGE ON WATER :t Woodland FRONTAGE ON ROAD Meadowland DEPTH = House Plot BULKHEAD Y -n Total DOCK 1 t 1 T fi COLOR TRIM. 3 t ,.k f. lY 7 x r A Bldg. = Extension gu u Extension _a Extension Foundation Bath : Dinette;. ` Porch Basement Floors K. r n Porch Ext. Walls Interior Finish LR Y_ Breezeway Fire Place Heat DR >y. Garage Type Roof Rooms 1st Floor BR Potio Recreation Room Rooms 2nd Floor FIN- B O. B. Dormer Driveway Total A4azy 2agia dapdLut �,qN 141991 90 � sss 1�aivs (Y. 117 5 Vrie �kXl`'�� (OY 3`T6 Vvi Le- A IrL . aV A 7vaG _ s�zSC210 GE Yet�f Aao OG -� 2 , r a C,G� -17 w- 7 /-Waf ' At _ �/�J r �U-C I vl Cz �'2.:f' (.2 L OzrJL ., Z,7 �- C , if 610 . �3 1 alf- �a VOA Cu ty, r � J �I FL 9 � I991 [PillI OL ll�V ., 1 71 0-41 ell V V STANLEY POSESS Attorney at taw 118-21 QUEENS BOULEVARD FOREST HILLS.NEW YORK 11375 (718) 263-7171 LIAN 301991 i is January 28 , 1991 Board of Appeals Town of Southold Main Street Southold, NY 11971 Re : Michael Cholowsky - Applicant Driving Range , etc. February 5 , 1991 Calendar Gentlemen: I am attorney for the Kenney' s Beach Civic Association, Inc. and I am authorized to advise you that our organization is vehemently opposed to the granting of the Cholowsky application to erect a golf driving range and various structures in connec- tion therewith on Hortons Lane north of County Road 48 . It is our considered opinion that this enterprise will be inappropriate in this community and will undoubtedly not only attract considerable traffic , but quite likely will also become a gathering place or "hangout" for large number of individuals with nothing better to do . We further suggest that the recent addition of the automobile dealership at that location also renders further congestion in that area inappropriate and inadvisable . The application should be denied. I""would appreciate the receipt of a copy of your decision in this matter via the enclosed envelope . Thank you. Yours ve truly, Lam' SP/mb STANLEY POSESS Encl . cc : Ms. Arline Richter RE IN \) STANLEY POSESS D rE ✓ ttorney at taw 118-21 QUEENS BOULEVARD hi�� 3 0 FOREST HILLS.NEW YORK 11375 (718) 263-7171 - — January 28 , 1991 Board of Appeals Town of Southold Main Street Southold, NY 11971 Re: Michael Cholowsky - Applicant Driving Range, etc. February 5 , 1991 Calendar Gentlemen: I am attorney for the Kenney' s Beach Civic Association, Inc. and I am authorized to advise you that our organization is vehemently opposed to the granting of the Cholowsky application to erect a golf driving range and various structures in connec- tion therewith on Hortons Lane north of County Road 48 . It is our considered opinion that this enterprise will be inappropriate in this community and will undoubtedly not only attract considerable traffic , but quite likely will also become a gathering place or "hangout" for large numbersof individuals with nothing better to do . We further suggest that the recent addition of the automobile dealership at that location also renders further congestion in that area inappropriate and inadvisable . The application should be denied. I would appreciate the receipt of a copy of your decision in this matter via the enclosed envelope. Thank you. Yours ve truly, SP/mb STANLEY POSESS Encl . cc : Ms. Arline Richter �( 1 MI 0 pall +,s , � , s 1991 ` 1�� r 14�1 ;� ►�3 I i. red ref my hUs6?d and 1 be— ou-f-- or= --Ww r, On t ruM� 21 �h Apa ftfter df 4 ProPosE4 `'30« cevn pI ey" o h orlons Lay)e� co m to b e.7�re y our group, P�eov6e., acO gor names i-r-) 4 Dist- o- Aese w6 wou.ld Spea.L �� U k 5 8 coe, ! 0 u) 'j 4� 0 2�5 eons NORTH FORK ENVIRONMENTAL COUNCIL Route 25 at Love Lane, PO Box 799, Mattituck, NY 11952 516-298- L • ,!��I Z 31991 January 22, 1991 Zoning Board of Appeals Town of Southold Mr . Gerard P. Goehringer, Chairman P. 0. Box 1179 Southold, New York 11971 RE: Appl. No. 3990 - Cholowsky/Casola Dear Mr . Goehringer , I would like to take this opportunity to apologize for not attending the public hearing held Friday, January 11 on this application. We had planned to do so but, unfortunately the inclement weather kept our usual representatives .at home.. . Therefore, I am requesting that you enter the following comments concerning this application into the record at this time. I have taken the opportunity to review the Southold Town Code regarding the Agriculture-Conservation district and from my . . review of the permitted uses and uses permitted by special exception, I don' t see where this application fits in: Section 100-31 B (7) does. list. beach, tennis, country, golf clubs and . public golf .courses, however, the Code does specify that these must cater exclusively to, a membership and states that they shall not be conducted for profit as a business enterprise. This application is for a use,. . a driving range , that. clearly will not have a membership and will be operated as a commercial business. It does not fit into the A/C . d.istrict. According to state law a Zoning Board may provide relief from the regulations of the -Zoning Code, but it cannot vary the criteria of the Code which I feel .you would be doing if the variance, as applied for, were to be granted. a non-profit organization for the preservation of land, sea, air and quality of life printed on 100% recycled paper. The definition of "Recreational Facility, Commercial" (Section 100-13) seems to best describe the type of use proposed and therefore this project should be limited to the Business and Light Industrial zones. At this time, my primary concern rests with the method of obtaining approval for the project, not the proposed use. I strongly feel that the applicant should not be before the ZBA, he should either find a parcel in the appropriate zone or he should go before the Town Board and request a change of zone. Thank you for considering my comments. Sincerely, Sherry Johnson Program Coordinator Encl. 1 i ' - � r,J (f) Any nursing home,;,hospital or sanatorium shall ' 1u 1 i,I meet the following standards: � r, `.'h `r! i IA �11(I f•.k li�ll 'J �I� Ift.�l� �Fl ,l,t,j III II'{ll „ II [1] , All buildings shall be of fire-resistive construe- ,�- ��T r l lal� Iftlil� I 1 .II') � I ". I'II�I i:..';�I I,�I,� �'r •� •�' -i S F a 1I I Its 1 1 1 l l I + 1'I t,l tioTl.'` l Ilt ' I} I E 1 1 ,• JJJJJJI !� I � I; t,, I 4, I I [2] All such'uses shall be served by adequate water r I ;I I II, I, l ,I L I ! and sewer systems approved by the Suffolk County Department of Health. 'rl `..1t tt1 ` r ' I i 1 II )i I I III I : I ''I'•� .I I I..;1i I. ' [3] Patients suffering from communicable diseases , . I shall not be permitted in any nursing home or sanatorium. (Communicable diseases are de- 1 f fined by the Sanitary Code of the Public Health " Council of the State of New York.) [4] Eight thousand (8,000) square feet of lot area shall be provided for each patient bed. (6) Public utility rights-of-way as .well as structures and other- installations' necessary to serve areas within the 'town, subject to such conditions as the Board of Appeals i. may impose in order•to protect and, promote the health, ` .sa_fo.t y,'appearance and general welfare of the community , and the character of the neighborhood in which the +r, proposed structure is to be constructed. (7) Beach''clubs, tennis clubs, country clubs; golf clubs, „ public golf courses and annual membership clubs r, + catering exclusively to members and their guests and accessory playgrounds, beaches, swimming pools, tennis courts, recreational buildings and maintenance buildings, subject to the following requirements: * r (a) No building or part thereof or any parking or c.: loading area shall be located within one hundred f: (100)feet of any street line or within fifty(50)feet of any lot line. (b) The total area covered by principal and accessory ,•,?:- '.; buildings shall,not exceed twenty percent (20%) of r the area of the lot. (c) Such use shall not be conducted for profit as a business enterprise. rr � • {!l I 10041 2-2s-89 r � �� 1 1 �f t � III d {+ �i t� !'ll i� 'vi t, I I I •' - r 1} i� •� i ,I I° {�R f��.I I I I I ee t i t I j I I I I I}}I�. �I l If � �� ' I �ri�`'�)��i�,, l�f 1� �} ��w a ��1 ,� I I�'. ! i�RI h I+; '`I � I�:, I� �.� ,y I � � r II ' I,� ' � I i ', • n> > tr I ,[ I� i�:�1,+� I�l Fill' 11 1 •I � 11� , 1 1 I ' I ttt 11 I' I,e L I. I f I dd i5 { I L; hl 'I I kr l ,I ilEl, II I'.11 ,' tI+1 !I {t tI.) I ;IIII 1 I R I 1 x r dLFI of t i• �., ,' I I t r - i, i i i' 9 I'' �I � � lr it l ; �� •. i �IIII'll°jl�'ll 'I 'I'IaI�I411a�rli Idl , � �"'� _ N)Oil SOUTHOLD CODE § 100-13• PERSON' Any association, partnership, corporation; coop- era ive group, trust or other entity, as well as an individual. ''' ''� I, pT,ANNING BOARD — The Planning Board of the Town of Southold _— I i,,,, `• PLAT.,- The map of a subdivision. PRINCIPAL BUILDING —A building in which is conducted ii the main or principal use of the lot on which said building is �l` located. - a PRINCIPAL USE — The main or primary purpose or pur- poses for which land and/or structures)is designed,arranged, - '': used or intended to be used or for which such land and/or - _- j;;' structures)' may be occupied or maintained under this - i' chapter. . PROFESSIONAL OFFICE — The office of a member of a recognized profession or occupation, including architects, artists, authors; dentists, doctors{ lawyers, ministers, musi- cians, optometrists, engineers and such other similar profes- sions _ d' or occupations which may be so desi ated by the Board d � p � — s` of Appeals-- _ PUBLIC WATER: PUBLIC SEWER— Communal sewage disposal systems and communal water supply systems as japproved by public agencies having jurisdiction thereof. { RECREATION:FACILITY, COMMERCIAL —An indoor or � nip*rinnr privately:operated business involving playing fields, courts, arenas or halls designed to accommodate sports and , recreational activities, such as billiards, bowling, dance halls, gymnasiums, health spas, skating rinks, shooting ranges, tennis courts and swimming pools. RECREATIONAL VEHICLE A vehicular-type portable o� structure, with out'permanent foundation, which can be towed, hauled or driven and primarily designed as temporary living accommodation for recreational, camping and travel use, and including but not limited to travel trailer, truck campers, _ ca.mping trailers and self-propelled.Motor homes. RESEARCH LABORATORY•—A building for experimenta- tion in pure or applied research, design, development and ` .. 10028. z-zs-ss I �I� t 1�.��:lsl•r''di�.tl..•..i .i.r.�' LIt;it.�. �j•!I��)': .li'�j.� 1�1� ---I- — -- - -- ----- - ----- — r-666aro"2. &)infers Mortgage Finance Consultants (516)765-5214 Registered Mortgage Broker FAX(516)765-1226 P.O.Box 335 N.Y.S.Banking Department First Towne Realty Bldg-2nd Floor Licensed Real Estate Broker Main Rd,Southold,NY 11971 January 14, 1991 Mr. Gerald Gehringer, Chairman jAN °�► ��' Southold Town Board of Appeals Southold Town Hall Main Road Southold, NY 11971 Re: Application #3990 Hortons Lane Southold Dear Mr. Gehringer: I submit this letter to reinforce my arguments in opposition to the above application. On review of your file I did not see anything to indicate that a special exception for the proposed use had been granted. As set forth in Sec. 100-31 B(7) it is unlikely that a golf ball driving range will be accommodated as a "country club, golf club, public golf course, and an annual membership club, catering exclusively to members and their guests" . The proposed use is about as retail/commercial as you can get and totally inconsistent with the existing zoning of the property. I see a vast difference between (say) the North Fork Country Club, which would appear to conform to this special exception use and the proposed use. Counsel for the applicant stated at your public hearing on January 12 that there is no other zone classification which accommodates a golf ball driving range. While I agree that it is not specifically stated as a permitted use in any of the retail/commercial districts, such use is not specifically prohibited either. If a given use is not specifically granted within the Code, does that mean it can go into any zoned area, residential or otherwise? That ' s what this application seems to be asking your board to approve. The request to obtain relief from subsection 7(C) cannot be granted. Aside from the president setting problem such relief would create, I believe there is another issue which goes to the heart of this subsection. When the authors of the Code wrote subsection 7 it is clear that (C) was considered an important condition to any special exception for "golf clubs" etc. It is clear that the authors wanted to limit such special exception to a use that would enhance a residential area and (2.) zone by precluding the retail/commercial aspect. Condition (C) is a very important part of subsection 7. Condition (C) cannot be fragmented out and dealt with as an isolated item. It is not an isolated condition. It is part of subsection 7 and is included as a qualification for this exception use. In a given sentence if one word is stricken or modified the entire meaning of the sentence can be changed that has no relationship to what the speaker intended. Relief from subsection 7(C) is no different. It is part of subsection 7 which must be dealt with as a whole not in parts. The applicant asks your board to modify conditions of the Code to meet their needs. Their needs are totally inconsistent with subsection 7, as it exists in its entirety. If the specific relief requested in granted the intent and meaning of subsection 7 is changed and, for all practical purposes, the zoning is changed to permit "for profit" commercial enterprise. I don' t think this is what your board wants, I am certain it is not what local residents want and it is not. what the authors of the Code intended. If the applicants want to change the permitted use of the property they should submit an application for a zoning change to the appropriate board. I am also concerned, as all residents of Southold Town should be, to encroachment of commercial enterprise into residential areas which are located on arteries off main highways. This is such an encroachment. The fact that Lucas Ford is there is not an issue. Right or wrong Lucas was zoned for the present use when purchased. It shouldn' t be there but it is. Let it stop there. Don' t permit this wrong to create another. P,espe tfull submitted, Ra.chard A. Winters RAW:lms L MARVIN T. HYMAN P.O. Box 964 Southold, New York 11971 (516)765-5538 D February 20, 1991 FEB 2 01991 X � Board of Zoning and Appeals Town of Southold Town Hall Southold, NY 11971 Gentlemen: Re: Application of Cholowsky -- Horton's Lane I reside at 570 Hickory Road and am writing this letter in opposition to the appli- cation of Michael Cholowsky for the construction of a golf driving range, minia- ture golf course, and batting cages on Horton's Lane, just north of the North Road. My examination of the file shows that the applicant has submitted no study showing what effect the proposed construction will have on traffic on Horton's Lane and on the North Road. Horton's Lane is a two lane road that leads di- rectly onto the North Road. It is always heavily traveled. In the summer, when the complex which Mr.Cholowsky proposes to build will be most heavily in use, this heavy traffic is augmented by additional traffic generated by people who have summer homes in the area. The difficulty of entry and exit to and from the golf complex will be enormous as will entry onto the North Road, which is al- ready bad. A traffic light may have to be placed at the intersection. This should be carefully considered before action is taken on the application. The application does not state what Mr. Cholowsky's hours of operation will be. Certainly in the summer the complex will be open well into the night. Flood- lights will have to be kept on during this period. The application does not address the environmental effect that this will have on wildlife, including local birds and animals, nor on the people who have residences within the affected area. This, too, must be considered in connection with this application. I had hoped to personally present my concerns to the Board but have just learned that I will must be out of town on Friday night. I would appreciate it if this letter would be read into the record of the hearing. SJncerely, fd,7.�vrc 1102.111_% arvin Hyman A TTORN ATEY AT LA 828 FRONT STREET,R O.BOX 803 GREENPORT,NY 11944 ��ff I A' (516)477-1016 JAN 1991 January 3 , 19991 Southold Town Board of Appeals Main Road Southold, New York 11971 RE: APPLICATION OF MICHAEL CHOLOWSKY Gentlemen: This letter is to confirm my verbal advise to you that the applicant will proceed on the variance request only at this time and that any application for a special exception will be held in abeyance. Very t y, r , r" J n 91 n JKM/lmt s._ N/0 /F CHESTER M. DI CKE RSON MON.t N. 72 0 32` 00 E . 1006. 71' MON. O h R (D tl• 2 O co tu CID • O • SURVEY OF PROPERTY w co o AT SOU T OL Z . N TOWN OF SOU T HO L D O o o SUFFOLK . COUNTY, N. e . , a .1000 - 055 - -- . 01 - S C'A LE I.". = 100' 0 MCH ..F E B. 6 1989 o a .O ° 0 Q o CERTIFIED TO : o INTRACOASTAL ABSTRACT COMPANY INC. FIRST AMER/CAN- TITLE INSURANCE O COMPANY OF NEW YORK vi u. TITLE NO. 365-S-4601 LORINDA C. CASOLA z S. 710 48` 10" W. .. 10 24. 06` j o <o L Zon>F cN N/ 0/ F LAND OF a C C RESTAURANT CORP. m a oa ' 111�0 LANO ao. Q 5 A./ �/ z C. •. O A N.Y.S: LIC. NO 66 R op H Prepaa in accordance with the m+nirnt�m . PEC �S YO Q .C n standards for title surveys as eslgblish.ad by the L.1.A.L.S. and approved and adopted 316} for such use by The New York State Land P.O. SOX a� AREA = 15. 73 5 7 ACRES Title Association. MAIN. ROAD . SOUTHOLD, N.Y. 119 71 i �- . ,. ' , b .� .� "�. t. 1, °z .P' u .. yi ')' $ �'"� „r a... 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