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HomeMy WebLinkAbout5186 APPEALS BOARD MEMBERS ��OS�FFO��CO ht. Gy Southold Town Hall Gerard P. Goehringer 53095 Main Road Lydia A.Tortora ,? P.O. Box 1179 George.Morning � • �`F Southold,New York 11971-0959 Ruth D:.Oliva , Chairwoman '�Oj �a0 ZBA Fax(631) 765-9064 Vincent Orlando Telephone(631)765-1809 http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD RECEIVED FINDINGS, DELIBERATIONS AND DETERMINATION MEETING OF OCTOBER 9, 2003 y- DEC 9 2003 Appl. No. 5186 — MADELINE DROEGE Property Location: 885 Pettys Drive, Orient; CTM #14-2-24. �&; s � buthown , PROPERTY FACTS/DESCRIPTION: The applicant's 40,336+- sq. ft. parcel is improved with 'a two-story, single-family dwelling with wood deck areas and in-ground swimming pool, at approximately 60 feet from the top of the bank facing the Long Island Sound in' Orient. The property has a frontage of 187 ft. along the north side of Pettys Drive. BASIS OF APPLICATION: The Applicant's request is based on the Building Department's April 26, 2003 Notice of Disapproval, amended September 10, 2003, citing Sections 100-31A and 100-31C, Section 100-30A.4, and Section 100-33C, in its denial of a building permit to construct an accessory wind turbine. The Building Department in its denial of a building permit to construct an accessory wind turbine stated that, on parcels measuring 40,336 sq. ft.: (1) a wind turbine is not a permitted use; (2) an accessory wind turbine structure is not permitted at less than 50 feet from the front lot line; (3) an accessory wind turbine structure is not permitted at a height greater than 18 feet; (4) an accessory wind turbine is not a permitted use. The applicant is requested an area variance for the proposed front yard setback, an area variance for the proposed height, and a reversal of the Building Department's position that a use variance is . required for the proposed Wind Turbine as an accessory use. FINDINGS OF FACT The Zoning Board of Appeals held a public hearing on this application on April 17, 2003 and June 5, 2003, at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property, and other evidence, the Zoning Board finds the following facts to be true and relevant: REQUEST OF THE APPLICANT, The applicant desires to construct a new wind turbine as an accessory use and structure in the front yard area at 33 feet from the front property line,and at a height of 64 feet to the top of the windmill from ground level. AMENDED REQUEST OF THE APPLICANT, During the April 17, 2003 hearing, concerns were raised about the height, location, whether or not the use as proposed is on the code's list of accessory uses and structures, as noted in the Building Inspector's April 26, 2003 and September 10, 2003 Notices of Disapproval. During the September 11, 2003 public hearing, the attorney for the applicant confirmed that a Use Variance is not requested in this application, and that applicant is requesting a Reversal of the r i page 2—October 9,2003 Appl. No.5186—Madeline Droege 14-2-24 at Orient i Building Department's April 26, 2003 Notice of Disapproval for the reason that the windmill is an accessory use, customary and incidental to the residence. ADDITIONAL INFORMATION: On September 15, 2003, the applicant's attorney confirmed that the applicant reduced the height of the proposed wind turbine structure from the original request of 64 feet to 43 feet, plus the addition of the 4 ft. blade on top of the tower. CODE PROVISIONS: The following provisions of the Southold Town Zoning Code are noted which apply to this R-40 Residential Zone District: § 100-30A.1. Purpose. The purpose of the Low-Density Residential R-40 District is to provide areas for residential development where existing neighborhood characteristics, water supply and environmental conditions permit full development densities of approximately one (1) dwelling per acre and where open space and agricultural preservation are not predominate objectives. § 100-30A.4. Accessory buildings. Accessory buildings shall be subject to the same requirements as§ 100-33 of the Agricultural- Conservation District. §100-31 C. Accessory uses, limited to the following uses and subject to the conditions listed in§100-33 herein: (1) Any customary structures or uses which are customarily incidental to the principal use, except those prohibited by this chapter. (2) Home occupation, including home professional office and home business office. In permitting these uses,the Town Board recognizes that the residents historically have operated small businesses which provide services to the community from their homes. The Board finds that these businesses have not impacted negatively on the appearance of these residential zones. In the Board's judgment, it finds that in order to maintain the economic viability of the town,to maintain the rural quality of life and in the interests of the welfare of the residents, these businesses (or home occupations) should be permitted to continue. In setting forth the following subsections, the Board intends to permit as of right certain business uses in residential zones with the understanding that these uses are to be conducted in a manner that will not alter the character of the residential neighborhoods. The Board believes that the following subsections provide sufficient safeguards to accomplish that aim.These uses shall be permitted, provided that: (see a-i). (3) Boat docking facilities for the docking, mooring or accommodation of noncommercial boats, subject to the following requirements: (see a, b,c). (4) Garden house, toolhouse, storage building, playhouse, wading pool, swimming pool or tennis court incidental to the residential use of the premises and not operated for gain, subject to the following requirements: (see a, b). (5) Private garages; provided, however, that not more than two (2) passenger automobile spaces in such garages may be leased to persons not resident on the premises. C - Page 3—October 9,2003 Ap'pl. No.5186—Madeline Droege 14-2-24 at Orient '(6) Off-street parking spaces accessory to uses on the premises. Not more than four(4)off-street parking spaces shall be permitted within the minimum front yard. (7a-c) The storage of either a boat or travel trailer owned and used by the owner or occupant of the premises on which such boat or travel trailer is stored, for his personal use, subject to § 100-191 Q, Supplemental parking regulations,and the following requirements: (8) Horses and domestic animals other than household pets, provided that such animals shall not be housed within forty(40)feet of any lot line. Housing for flocks of more than twenty-five (25)fowl shall not be constructed within fifty(50)feet of any line. (9) Yard sales, attic sales,garage sales, auction sales or similar types of sales of personal property owned by the occupant of the premises and located thereon,subject to the following requirements: (see a-c) (10) Wineries may have an accessory gift shop on the premises which may sell items accessory to wine, such as corkscrews, wine glasses, decanters, items for the storage and display of wine, books on winemaking and the region and nonspecific items bearing the insignia of the winery.Wineries may not have a commercial kitchen as an accessory use but may have a noncommercial kitchen facility for private use by the employees.[Added 11-29-1994 by L.L. No.26-1994] (11) Child care. [Added 11-12-1996 by L.L. No.20-1996] § 100-33.Accessory buildings.[Amended 4-10-1990 by L.L. No.6-1990] In the Agricultural-Conservation District and Low-Density Residential R-80, R-120, R-200 and R-400 Districts, accessory buildings and structures or other accessory uses shall be located in the required rear yard,subject to the following requirements: A. Such buildings shall not exceed eighteen(18)feet in height. B. Setbacks.[Amended 7-17-1990 by L.L. No. 14-1990;2-5-1991 by L.L. No.2-1991] (1) On lots containing up to twenty thousand (20,000)square feet,such buildings shall be set back no less than three(3)feet from any lot line. (2) On lots containing more than twenty thousand (20,000) square feet up to thirty-nine thousand nine hundred ninety-nine(39,999)square feet,such buildings shall be set back no less than five(5)feet from any lot line. (3) On lots containing in excess of thirty-nine thousand nine hundred ninety-nine(39,999)square feet up to seventy-nine thousand nine hundred ninety-nine (79,999) square feet, such buildings shall be set back no less than ten (10)feet from any lot line. (4) On lots containing in excess of seventy-nine thousand nine hundred ninety-nine (79,999) square feet, such buildings shall be set back no less than twenty(20)feet from any lot line. C. In the case of a waterfront parcel, accessory buildings and structures may be located in the front yard, provided that such buildings and structures meet the front-yard setback requirements as set forth by this Code. [Added 12-22-1992 by L.L. No.33-1992]. REASONS FOR BOARD ACTION: On the basis of testimony presented, materials submitted and personal inspections, the Board makes the following findings: 'Page 4—October 9,2003 Appl. No.5186—Madeline Droege 14-2-24 at Orient 1. The applicant's property is located in the R-40 Low-Density Residential Zone District and is improved with a single-family dwelling. The use is not a listed use under subsections 1 through 11 of Section 100-33 of the Zoning Code for permitted accessory uses or structures. Reference is also made to Section 100- 23E and Section 100-237A of the Zoning Code, noted below: § 100-23E. Any use not permitted by this chapter shall be deemed to be prohibited. Any list of prohibited uses contained in any section of this chapter shall be deemed to be not an exhaustive list but to have been included for the purposes of clarity and emphasis. §100-237. Prohibited uses in all districts.[Amended 11-24-1992 by L.L. No.26-1992] A. Any use which is noxious, offensive or objectionable by reason of the emission of smoke, dust, gas, odor or other form of air pollution or by reason of the deposit, discharge or dispersal of liquid or solid wastes in any form in such manner or amount as to cause permanent damage to the soil and streams or to adversely affect the surrounding area or by reason of the creation of noise, vibration, electromagnetic or other disturbance or by reason of illumination by artificial light or light reflection beyond the limits of the lot on or from which such light or light reflection emanates; or which involves any dangerous fire, explosive, radioactive or other hazard: or which causes injury, annoyance or disturbance to any of the surrounding properties or to their owners and occupants; and any other process or use which is unwholesome and noisome and may be dangerous or prejudicial to health,safety or general welfare. (2) The amount of relief requested is substantial because a windmill is not a use listed under Code Section 100-33 as an authorized accessory use or structure, and the Board of Appeals is not authorized to add language to the Zoning Code or amend the code as written. Also, the applicant is not a public utility or other licensed provider of public service. (3) The setback and height variances will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. It will involve an annoyance or disturbance to the surrounding properties or to their owners and occupants, during storms and during hurricanes may be dangerous or prejudicial to health, safety or general welfare. It is located in residential neighborhood. (4) The difficulty was self-created when the applicant planned a windmill in a residential neighborhood and in a site location that does not meet the zoning requirements. (5) The relief requested will have an adverse effect or impact on physical or environmental conditions in the neighborhood or district, for the same reasons noted above. The property is located in a community of residential homes. (6) The use requested could be authorized only by new legislation in a change to the Town Code, authorized only by the Southold Town Board. Page 5—October 9,2003 Appl. No.5186—Madeline Droege 14-2-24 at Orient RESOLUTION OF THE BOARD: In considering all of the above factors and applying the balancing test under New York Town Law 267-B, motion was offered by Member Orlando, seconded by Member Oliva, and duly carried, to DENY the application without prejudice, as applied for. Vote of the Board: Ayes: Members Oliva (Chairwoman eff. 10/21/03), Member Tortora (Chairwoman thru 10/21/03), Member Goehringer, and Member Orlando. (Absent was Member Horning.) This Resolution wa ly adopted (4-0). Ruth D. Oliva, Chairwoman — 12/ /03 Approved for Filing FORM NO. 3 NOTICE OF DISAPPROVAL DATE: April 26, 2002 AMENDED: September 10, 2003 TO: Madeline Droege 885 Petty's Drive 7 - - Orient,NY 11957 J SEP 1 1 2003 , Please take notice that your application dated March 4, 2002 k �r - `i For permit to construct an accessory wind turbine at ,__ :E Location of property: 885 Petty's Drive, Orient,NY County Tax Map No. 1000 - Section 14 Block 2 Lot 24 Is returned herewith and disapproved on the following grounds: The proposed accessory wind turbine on a 40,336 square foot conforming lot in the Residential R-40 District is not permitted pursuant to Article III, 100-31A., "Permitted Uses." A wind turbine is not a permitted use. In addition the proposed construction is not permitted pursuant to Article III, Section 100-33C which states; "In the case of a waterfront parcel accessory buildings and structures may be located in the front yard,provided that such buildings and structures meet the front-yard setback requirements as set forth by this code." Principle building setback per bulls schedule is 50 feet The accessory wind turbine is noted as being +/- 33 feet from the front yard line. In addition the proposed accessory wind turbine is not permitted pursuant to Article IIIA, Section 100- 30.A.4, which states, "Accessory buildings shall be subject to the same requirements as 100-33 of the Agricultural- Conservation District,"which states "In the Agricultural-Conservation District and Low- Density Residential R-80 R-120 R-200 and R-400 Districts, accessory buildings and structures or other accessory uses shall be located in the required rear yard, subject to the following requirements: A. Such buildings shall not exceed eighteen(18) feet in height." The proposed accessory wind turbine is as being 64 feet in height. Furthermore the proposed wind turbine is not permitted pursuant to Article III Section 100-31C. An accessory wind turbine is not a permitted use. .1 This 'Permit was amended on September 10,2003, to include the fact that the wind turbine is not a permitted use, a fact that was left out of the original Notice of Disapproval. thorized Signature Note to Applicant: Any change or deviation to the above referenced application, may require further review by the Southold Town Building Department. CC: file, Z.B.A. O T4..1J OF SOUTHOLD, NEW YORK APPEAL FROM DECISION OF BUILDING INSPECTOR APPEAL NO. DATE d e a TO THE ZONING BOARD OF APPEALS,TOWN OF SOUTHOLD,N.Y. olh� l C.toss E- . I,Madeline Droege of 885 Petty's Drive Name of Appellant Street and Number Orient 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 March 4. 2002 WHEREBY THE BUILDING INSPECTOR DENIED TO Madeline Droege Name of Applicant for permit 885 Petty's Drive, Orient, New York Street and Number Municipality State ( ) PERMIT TO USE ( ) PERMIT FOR OCCUPANCY (X) Pernut to construct an accessory wind turbine on front lawn 1. LOCATION OF PROPERTY 885 Petty's Drive/OrienVR40 Street/Hamlet/Use District on Zoning Map DISTRICT 1000 SECTION 14 BLOCK 2 LOT 24 ................................................................................Current Owner Madeline Droege Map No. 5859 Lot No. 6 Prior Owner Bruno Civitelli/Civitelli Brothers Realty Cori). 2. PROVISION(S) OF THE ZONING ORDINANCE APPEALED(Indicate the Article Section,Subsection and Paragraph of the Zoning Ordinance by number.Do not quote the Ordinance.) Article III &IIIA Section 100-33C, 100-30.A.4, 100-31C 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 Shap. 62 Cons.Laws Art. 1.6 Sec. 280A Subsection3 ( ) 4. PREVIOUS APPEAL A previous appeal SW(HAS NOT)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 variance and was 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 I seek to produce my own electricity for use at my home where I reside with my two daughters. The addition of a wind turbine on my front lawn would allow me to produce electricity for my use. It would be a quiet, efficie:__ -J,e of the wind to accomplish my objecti:.,: The wind turbine would not affect the tidal wetland in any way. REASONS FOR AREA VARIANCE ONLY(to be completed by applicant): Do not use these standards for"use variance" or"special exception" (Also attach sheets if necessary, with signatures.) 1. An undesirable change will NOT be produced in the character of the neighborhood or a detriment to nearby properties,if granted BECAUSE: The wind turbine is a small structure in the nature of a flag pole. The__ wind turbine operates quietly and is barely visible from a distance. The height of the structure,i.e. 64 feet,is necessary to access the wind which drives the wind turbine. The existence of the wind turbin will be hardly noticeable. - ` '43' � 2. The benefit sought by the applicant CANNOT be achieved by some method, feasible for the applicant to >1S"l1 pursue, other than an area variance BECAUSE: I seek to use the wind as a power source for my home. Because my residence is on the Long Island Sound there is usually a strong breeze and the wind turbine is the one structure that will take advantage of that benefit. I need the height variance so the wind turbine can be above structures that could impede its operation. 3. The amount of relief requested is not substantial BECAUSE: The power that will be produced is great in comparison to the minimal structure proposed. 4. The variance will NOT have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district BECAUSE: The wind turbine is a small structure that operates quietly. It will be hardly noticeable from the neighboring properties and not visible from many of the neighborhood residences. 5. Has the alleged difficulty been self-created? ( )Yes. (X) No. 6. This is the minimum that is necessary and adequate, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community. The height requested is not . great,but it is necessary to access the wind above structures that would impede its operation. STATE OF NEW YORK) COUNTY OF SUFFOLK) (Applicant)Madeline Droege Agent must attach written consent from owner. SW to or lC/ Z)r y f e, 0 otary Public DANIEL C.ROSS Note!v public,State of NowYO* Np,j4W7175 D:)DATA\REAL\DROEGEZBA.APP Quanfied In Suffolk Cour�tY Commission Expires Aug.31,�fl=- -BWC XL°'@- Battery—ChArging--V9rs!on------__---- Prepared For. Orient Point Site Location: Long Island,NY 1 kW Data Source: Your Source Date: 1/2102 EEE .. EE EEEE i EEE E'•EEEEEE ?'• ' EEE`:E EEE i ► .X Ave.Wind(m/s)= 6 Hub Average Wind Speed(m/s)= 7034 1 m/s=2.2369 mph Weibull K= 3 Air Density Factor= -0.5% Site Altitude(m)= 50 Average Output Power(W)= 454 Wind Shear Exp.= 0.220 Daily Energy Output(kWh):; 8.7 Anem.Height(m)= 10 Annual Energy Output(kWh)= 3,184 Tower Height(m)= 25 Monthly Energy Output= 265 Turbulence Factor= 5.0% Percent Operating Time= 97.4% Perf.Safety Margin= 20.0% Weibull Performance Calculations Wind Speed Bin mfs Power W Wind Probability Net W @ V Weibull Calculations: 1 0 0.53% 0.00 Wind speed probability is calculated 2 2 2.11% o.04 as a Welbull curve defined by the 3 21 4.59% 0.95 average wind speed and a shape 4 57 7.63% 4.33 factor,K.To facilitate piece-wise 5 118 10.70% 12.65 Integration,the wind speed range is broken down into"bins"of 1 nits-in 14.22% g 217 13.22% 28•49 width(Column 1).For each wind 7 355 50.42 speed bin,instantaneous wind turbine 8 501 13.74% 68.06 power(W,Column 2))is multiplied by 9 662 11.81% 78.18 the Weibull wind speed probability(f, 10 832 8.99% 74.85 Column 3).This cross product(Net 11 1,012 6.03% 61.04 W,Column 4)is the contribution to 12 1,135 3.54% 40.14 average turbine power,output 13 1,163 1.80% 20.93 contributed by wind speeds in that 14 1,135 0.79% 8.93 bin. The sum of these contributions Is the average power output of the 15 1,087 0.29% 3.19 turbine on a continuous,24 hour, 16 1,035 0009% 0096 basis.' 17 983 0.02% 0.24 Best results are achieved using 18 936 0.01% 0.05 annual or monthly average wind 19 889 0.00% 0.01 speeds.Use of daily or hourly average 20 842 0.00% 0.00 speeds is not recommended. 2000,Bergey Windpower Co. Totals: 100.00% 454.27 Instructions: Inputs: Use annual or monthly Average Wind speeds. If Weibull K is not known,use K=2 for inland sites,use 3 for coastal sites,and use 4 for island sites and trade wind regimes.Site Altitude is meters above sea level. Wind Shear Exponent is best assumed as 0.18. For rough terrain or high turbulence use 0.22. For very smooth terrain or open water use 0.110. Anemometer Height is for the data used for the Average Wind speed. If unknown,use 10 meters. Tower Height is the nominal height,eg.:24 meters. Turbulence Factor As a dersting for turbulence,product variability,and other performance influencing factors. Use 0.00(0°/u)-0005(59/6)is most cases. Performance Safety Margin is a derailing that accounts for unuseable energy(eg.:batteries full)end adds a margin of safety in satisfying thb load requirements. Use 0.05(50/6)for remote homes and%Allege power sites with back-up power. Use 0.15(15%)-0.25(25%) for telecommunication applications with back-up power. Use 0.2(20%)-0.4(40%)for high-priority loads at sites without back-up power(should have solar component). Results: Hub Average wind Speed is corrected for wind shear and used to calculate the Weibull wind speed probability. Air Density Factor is the reduction from sea level performance. Average Power Output Is the.average 24-hour power produced,without the performance safety margin adjustment. Daily Energy Output includes all deratings and is the primary performance parameter: Annual and Monthly Energy Outputs are calculated for the Daily value. Percent Operating Time is the time the turbine should be producing some power. Limitations:"This model uses a mathmatical idealization of the wind'speed probability. The validity of this assumption is reduced as the time period under consideration(ie;the wind speed averaging period)is reduced. This model is best used with annual or monthly average wind speeds. Use of this model with daily or hourly average wind speed data is not recommended because the wind will not follow a Weibull distribution over short periods. Consult Bergey Windpower Co.for special needs. Actual Performance May Vary I a' O y SC 9 ti� s. � \ r \\ \ \5 \\qe 1m / \ \" T 1� G-�.S.taL:G-Wrt"ri 11J pgy AanS YNOPJ 17 I // Tao 57Y. REE-IOENGE O� . ,y_z Fl¢s� Ftooz _ I IG ELIZABETH A.NEVILLE = G'y� Town Hall, 53095 Main Road TOWN CLERK y - P.O. Box 1179 REGISTRAR,OF VITAL STATISTICS � � Southold, New York 11971 MARRIAGE OFFICER ?i �� Fax (631) 765-6145 RECORDS MANAGEMENT OFFICER �Ql �a� Telephone (631) 765-1800 FREEDOM OF INFORMATION OFFICER southoldtown.northfork.net OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville, Southold Town Clerk DATED: June 26, 2002 RE: Zoning Appeal No. 5186 Transmitted herewith is Zoning Appeal No. 5186 Madeline Droege for a variance. Also included is: letter of transmittal from dated June 24, 2002; ZBA Questionnaire; Applicant Transactional Disclosure Form; copy of deed; copy of survey and copy of tax map. —N— • P.D•65 q0 � LULU LLLW J .ss Luw tAuilU�Y yu e y • LA LlilU >u . Y ma 320 Li seas °' wrgv u" e ' Y Q pp• SSW e ,•°n uub t• , � � 101 ADD Via. 7 v � _• r .•q0 yJO ISLWD 9• y� O FP u M Ylw[memun �• a o iii ; � I o iW Rl.la ]Je _ a 1'WU2 ley _IIN •� v LLItl E jYd a ILt e O mow. •J]] 3 -• � �iva rw vn.1a E°a vu.1a as v,Z 1a ]]e u t9 ]Si SEE gc la SEE SFL1R S¢SS.ia yU Olf-0201].S °IfQt-C101 02°-01.00Ll C .. YAW olA YAW ' � �. iLz 1EE sEc ea°u � ssE sEclia ate. � Y u S.R.ZS '•F• T. 1°n . OTICE COUNTY OF SUFFOLK C K �a SOUTHOLD now wo E --�— ,,,•� ren " —_ -- -- -- „� ""° a<m uurt�wC AlGumi5ut U1 Q Real Property Tax Service Agency Y014 lC—tyCml°r Wv°rf>; IfT IWlu �•• —_— -- —_ —_.—_ afro m"m lu"vcromnm .•...xr¢u .F escst 1a 1Q�0 PROPERTY YAP TOWN OF SOUTHOLD PROPERTY RECORD CARD OWNER STREET VILLAGE DIST. ' SUB. LOT FORMER OWNER N E ACR. r 0 S W TYPE OF BUILDING RES. i SEAS. VL. FARM COMM. CB. MICS. Mkt. Value LAND IMP. TOTAL DATE REMARKS Y// h3 S f /ri < � CO � �� C.t•.7.� �r. `f cti'. b;: r � .- �:��,_ ! ` 3 f t. ' I nd�.',�'' C.J ' /1 P r)E G LrJ j� {' f< 1-4 NS-L 1 �1 �. ,6 r Tillable FRONTAGE ON WATER -'` fir_. 'y Woodland FRONTAGE ON ROAD r .f. '1 MeadowkxW DEPTH t House Plot BULKHEAD ` - Tota i 4 IVA .37 MVH", MIES � � ■■■■■■■■■■■ ■■ ■■■■■■■■■■■■ f � . Y1■11■■�L���■■�; � WIN■■11■■■■■■KE ■■ ■■M■MEN �i��l1i�■■■■■■■■■■�■■�■■■■■■■� ■iMr��■■7AY�■■■■■■■■®■■■■■■■■■ APPEALS BOARD MEMBERS �SVfFO��-C Southold Town Hall Ruth D. Oliva, Chairwoman �O�' �G 53095 Main Road \� Gerard P. Goehringer y� P.O. Box 1179 Lydia A. Tortora y Z Southold, NY 11971-0959 ! , George Horning Tel. (631) 765-1809 Vincent Orlando �y ��� Fax 765-9064 (alt. 1823) http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD December 9, 2003 .2 q P- 7 By Regular Mail and Fax Transmission Daniel C. Ross, Esq, Keegan & Keegan, LLP 315 Westphalia Road P.O. Box 146 Mattituck, NY 11952 Re: Appl. No. 5186 — M. Droege Dear Mr. Ross: Enclosed please find a copy of the findings and determination, with conditions, rendered at Zoning Board of Appeals Meeting held October 9, 2003. The original was filed today with the Office of the Town Clerk. Thank you. Very truly yours, Linda Kowalski Enclosure Copy of Decision 12/9/03 to: Building Department Patricia C., Moore, Esq. (repr. Mrs. Mallis) ZBA OFFICE COVER SHEET TO: Lydia, Jerry, George, Ruth, Vincent Board of Appeals FROM: ZBA Office DATE: CJ l 19 / 2003 n SUBJECT: File #� - Date of Next Meeting: .S4ol- 3 Please find attached copy/copies of 41tiR 16 Please keep for the upcoming ZBA meeting. Thank you. ZBA: 1 J ' -M •r.4' r iMi, G. 6/ `3rJ , SERIES 7 N.Y,2d 372 x : - 7*N.Y:2d 874 DELLWOOD DAIRY�00.d;CITY-Or NEW ROCHELLE 7i9 :r or lower limits, and Cite as iez x.y.s:sa lie ,-ontrol of traffic, sec- _ , r ;ti r•c:?'..�?,a;::>:{,",'. ;% E I. 7N.Y.2d.374iy„ DELLWOOD DAIRY CO.,` Inc., Appellant, v: CITY Or NEW ROCHELLE 's•as did section 95—c. _ , et a1., Respoadenta." '' ?wage employed but if r;= -1gainst the defendant, }' do ' of Appeals of,New York., March 3 1960. -his prosecution, since ; ; ��: , , ; � 1`�,• � • ; Ise. For example, to .q .r',: commission may seta Action for a judgment•declaring.that,the,maintenance.and,opera- ]giving adequate warn- r. tion by,plaintiff;of a coifi-:ope ratedf milk,vending,machine in residential apartment'building did ,not violate.,the r.zoning law ,and to enjoin de- gbdivision 3-of section fendanis from -interfering--therewith, +From-a judgment,-entered April a the incorporation in 21, 1959, upon;,an:order: of the Appel liteY.Division;, Second Judicial ection repealed by the Department; 7 A.D:2d 1026,,,'184 N!Y.S:2d 656,:which reversed an order of the Supreme'Court,at,Special.Term, Arthur D�;Brennan, J., entered referring to the new in Westchester County, (1) granting atmotion, by, plaintiff for,-sum- mary,as section 95-c mary judgment and (b),;den�ring a motion by defendants or summary 80) judgment and denied •the motion by.plaintiff, for summary, judgment e their case against and granted th m e otion by defendants for summary judgment; the plain- subdivision 3 of sec- tiff appealed., The Court. of;Appeals, ;Per Cuitiam, held'that a-coin- they did not need to operated milk vending maclii6e installed in basement of apartment House ission stating that the located in restricted,residential zone, was a device.designed to,'perforrim as 50 miles per hour. { a "use customarily incidental and subordinate" in'normal enjoyment of apartment house and hence did not violate the zoning law prohibiting anv at the stretch of road business in such district except `•`accessory useras:customarily incident to excepted from the op- the above-.uses",and defining--an "accessory,use" as.a "use customarily incorporated villages). incidental an&subordinate to the main use,conducted-on the lot, whether s below probably did, -' such accessory use-is: to be conducted.•in a .main'r-or, accessory,build- e Town of Blooming ink', =illage (see N.Y.Leg. Judgment of'Appellate DiVision''reversed and that of Special Term reinstated.' ,. 1 d the matter remitted t :t" +' xtermination upon the r L. (, -Proc. § 543—b). r Zoning C=304 ` A 'coin-operated, milk•vending machine, installed in,basement of FROESSEL, VAN apartment house located in restricted residential zone, was a device designed to perform-a "use customarily incidental and subordinate" in aty Court for further, r = normal enjoyment of,apartme,nt house•:and hence did not violate the zoning law prohibiting any business in such district except "accessory use as customarily incident to the above uses" and defining`ari "accessory use as a "use customarily incidental and subordinate to the main use conducted on the lot, whether such accessory use is to be conducted in a main or accessory building". See publication Words and Phrases, for other judicial constructions and definitions of "Use Customarily.Incidental and Subordinate". ,f - • ' ,-:, r T,(2d:.SERIES. 7:N.Y.2d•W4 7 N Y.2d 919 _ 720 ;�.,3�i: :.i:197.NEW,YOB,$ $IIPPL'EMEN "Jules H.: Enrich, New York City; Morris,Golub, New Rochelle, and Sydney C. Winton, New,York't, t!y;.`foi.appellant. ATTORAM REAL ' w Murray C. Fuerst, Corppr. t gtz,;�Counsel; New Rochelle (Herman D. Schmier, New Rochelle, of'`counsel), for respondents. PER CURIAM. u , r, ; „ F'. !:,^ ` ' Appeal from S The sole issue is whether the presence'of acoin-operated milk vending 8 A.D.2d 937, 19r machine; installed°in' the!basement{of i an'apartment house!located in a Owner of realt= restricted residentialtzone,iIviolates the-Lonin `�Law•of-the.Giti4 of Neiv ` g y' of town and map -Rochelle,'-which"'prohibits`any'businesslin!R-5=District eaceptl"Accessory w: fected owner's re= uses customarily.i ='.ident tot the above uses'•`-(New,Rochelle Zoning Law, The realty, wit. art:V'II,,§`1 -stibd:',[e])"-'Aii"accessorrtise t.is'defined as°`,`a use•custom- e.;. about 12 acres, w arily'inc dental 'and' subordinate="to''the,mairi-use'lcondlicted on.:the lot, ;:, a depth of about whether,' ' accessory use''is•to•be'conductedJ•inxa maini'or-,accessory • matter, the realty building,' (art.iXI):.4?-We,thinklit:does:no.t. ,,: �. residences or for As noted in Spec Term, the use"of'a`milk=vending machine is'but :- ; restrictions and e a different method a'of doing .traditional service' for a householder: a;, nance. It is:a.common:experience that neiw ,fimes:4bring 'riot' only'new`problems _` The Supreme but new ways and means of dealingrwtth,old.'ones:' To`illustrate;,atitomaL „ creeing that zonir; tion is now being turned to as a means,of reducing ,labo•r costs not'oi11y a the realty, and th• in the'iiidustrial and lcoirimei•cial`fields; but also in.'Elieldomestic "The ;. !! is! %.fFi�l!}' i;;: ; ,ti.. :,� ;i., iii . A: -; , J The principal u presence of, a !" {, r; in submitting to t . ,7 ji':Ci. ii :,,.;;, ::,: �--': .,'t . r I,u ;, ,,+° '' •i,.; i milk-vend in 'machine `such as-the=ones-used'here;:'in.-the ,,: disturb the legisla. basement'of an apartment!building.,which`is,not`accessible to-the generalF The Appellate public,' canlhave'little, if'iany;'advefse.iapplication-to the 'character of ly affirmed the j the residential'neighborhood.;(:Iteis not�commercialism'such as ordinarily f:_ The Appellate disturbs,-the quiet and peaceful enjoyment of the home but; rather,•.the tion for reargurrk convenient,subst tute.ifor t)3e!rogte,,m.; p„Y;It.is ardevice designed!to per- and motion for form,"a'use customarily }incidental and .subordinate" to the„normal :. The Court of enjoyment of an.apartment. house.; tion for leave to The judgment of the Appellate Division should be reversed and that ..--The town app,, of Special.Term,reinstated,'with costs }n this-court'and in tl Ce pr_llate the Court of Ap ..c; ?,t i+.,!!,;,,.f!I. ,.:,;?{: 'll:ir! �:I::.!t!:i. -.iifr,i !'rJ';1" . , .•, i '+ . . ' Division. ' .r; '.�Ji t, fr, ,'i[:: ,�!%Iji`;;1.•'+Si:.a;!tee;s,ri!'+,-I;-c:r'?., Nii.i.11';;i;i,;i.`.J;.'.i�:il",.! ,tlil':i Motion t0 d15• 197 N.Y.S.2d—C ! DE'SMOND, Ci ' J:;:;-and YE;- E f'`FULD; 1•FROESSELI VAN VOORHIS BURKE'and FO/STR; jj.;-concur.J'? 1 '1"• i '. ;'� !'.i'i 1`?t ;i!')ii �!1 :.: !'J r.-41;,1 !i..` , ''llll lt,iil•�:"i:;i :!,i 7..11{i'.�:. is L Judgment revers{ed,� -fit e.:Jal1 '1'i!�;{i. Jill ;,: ,Jf!-)�Ji 11!: �' ,ifi: i •,j. �, a Il;..;!1- .�!'i! t7J :3ii. ;(i.ijJt(I!r: 4,J:IL i!Jtl,l;r (!! !i„t..i!`•i�',.: :1 , J . .> ., i.,4 5 f,f !; r•�1!:in? ' � � s:1 rC:i:'!1 r i 'GC7.1 Ji-. it �!i„ iJai:,?i:! ,! %i +'ii , I,J; .°t�: +,,. !1 - ,•,i •, i1, 'l.I IIU -ftJi ,a,. ;r,i'l I'r;,,. {' ;.Llui`,,r;1,!{:. �r;1ir !,:t,?'1'1%...._ ti it ;ICi;rig l a�i,' .., l::: i!•: :! .. i?: . �- .- - _ - - ry is - _ • t>.s�.E.w+o�,••o®P - zf,rrsus p�=.o— prop[rcybratwN'coPer 19 UT-ITATr 7 �e1� S `Tnursery,'',1 me} 234 A.D.2d 584 ' ,.;; damages for nuisance, (1) the plaintiffs ap- garden" and "greenhouse .contemplate,the action, inter al.•r.a for partition off-a ,._5�;:�- :f real property, the' defendant ap- Susan ECKER, et al., Appellants- =±.w s T peal, as limited by their brief, from so much sale of products grown on-site (see, 83 An. s limited by his brief,from so much of r Respondents, ' + .• .j;,` of a judgment of the Supreme Court, Suffolk Jur.. 2d, Zoning and -Planning, §"397;: ] + +. County(Prudenti;J.), dated March 10 1994 Anderson..New.york Zoning Law and:Prac- r and interlocutory judgment (one y ;-• ,h f f g p ` Y '`''.'::`.-' :Y.,' : _': '.. .:•`,�i1m - as upon'>er�oining-the defendant-from selling lice;§, 13.19;1,40 ALR2d-1459-1460):,,rThere :f the Su reme Co Kin' Count Charles,5. DAYTON,.et,al,.Res ndent =" ; pin, J.), dated. Febru b 1996 as -, P°-.. Y ��, produce or-merchandise$not=grown"on<their fore;we e.with the Su reme--Court;thai r,t . f 'Appel lams; xt"s%''a.' ti t� ?i:- a P ;is quest for-ahearin on the issue ;`' prop Y -dismissed 'the-remainder" of:.the the Daytonsi farm.starid is,customarily:ina z ,_ , �;. . ;M>� t'; •:' , :.:.;,..•-.,t�°.;;jj.� plaintiffs'cause"of action which q+as-to:e oin 'per he was proPerly,served;with the ; ,. Averill'DajUii.,Geus;•Defendant," ' Y 1 dental or a,usual accessory.;use of tlie.'truck r a the defendants Is and complaint., L. b i '.,`s;' ' Respondent. ; from:operating.a farm stand garden.::; The:Dayton ma continue selling > ► s z + si?I n,. _ .:>,�i:i'�,..>i..wt and,dismissed the laintiff y""; t p ..Plaintiffs',cause of,action at the:;farm stand<:produ&t -,igrown;,on,;the RED that the.matter is_,remitted to h:�t°,Su reme Corirt,Appellate Divisions''~ " '' ;dam p 7: k:i.. to recover ages;based,,, ce •and tivck' s,;�s _ _ on;.nuisan en:•, r p e Court,, gs ty, };:: ;, h Second De ent .,;..sP a me.Co Kin Coon •,to hear , ;:�• u, n .•_t: partrn �; � -4y .. (2) the defendants,Charles-:S. Dayton and srr " ,r prt,whether;the defendant was;Prop- is= ':i°:1> .a;� { .;i:`::1 -Y>,:x;+�i Jonathan -R. Da' :i Fuiti}ier,,t}ie Supreme'Court Was corre'ct'in yton, cross-appeal,;from,so , wed with the summons"and complaint, _ - - i y ,.._ Dee'30,+1996 liiriitiri' sales e" tahil' ' r. ' as a joined them g at tti s 'only! 'to"those s r i ._;. .>s....Y 9- } muchofthe:same ud ent gm,-. �1. roducts;l + 4 r �" :ori`the'trEi'ck `> '4 -The appeal is'held in•.abeyanee,in"".the x,; ,j,1.C: �:, •�, ...Y ti�Y�;r .: ?:cfi-. from_..o tin a:farm."star • 8 ► garden:° Pe1a. g. t .a-; The Supreme.Court;;Kirigs.Coonty, Village of Eas ton'`Code'f',..- ;�:,.. r ' own:elsewhere.,or; t•=HaM ..;,,, brought.for,'damages,ar►d for;° sells-.any;producec81 sells p emPhasrzes; . ,..;. ^� as '.a policy the "im rtapep frote R its: -t with all convenient speed > panent_:injunction,;barring.:coperation•�of,�s any Products or.:merchandise not:made.firom P°.. Qt_P....... 1 .l•_.; .L.+?a pia^1�.iJ..:1=,.:`i.4: , i'::.t::;f: TI } „ ( lea: {• nei hbors and ensuring that the development the defendant's contention farm'stan8. .:,The'.Supreme Court;` Suffolk' ?, their,home,grown.produce"...-Justice;Santuq-, of g _ f ;;., s commercial properties r Supreme.Court{should haveiheld,a��'County; Prud'enti,F;J., er�joiried:sale:'at"farm;L a has been;substituted,fort.:the; Justice P Perties,•does not destroy late.'" to`determine whether,the defendant stand'of,products not'horr 6*ro�vi;ibu£'�e� _ Hart(set:22 NYCRR-670.1 c i,. Widen areas,l"ace;(Village;of Eab` lamp - [ ]"): w .453 ton Code :; ., s`l: < ,;�... § 13 )., o,pernut �e Da n to perly:served".with ;process sin :this 'other relief,and'apf;6J."and cross ORDERED that the judgment'is;a�u-ined ''`' a,°'r:.,`"~T'"..` ::.'°` `3' . ,, -: �� _ en e,insthe sal By asserting an affirmative defense . Were:takeh2-:The'Supr&fie Court;:Appellate-I -- insofar as appealed;arEd cross-appealed fro 1: ` 5 ,:..ej of,.produets� iought,from , hf personal jurisdiction in his answer, Division;held that farm'stands were'accesso ;; without.costs or,,dis ents ?� f !?S would eontitiite�ro e a > sr u. _ . bursem „rr,; ai', 's`Yrti tivi f•a which`wool ''> ?ndant elected to,.delay:resolution of ?'Y use permitted"in'residential district;:,bu .,f.� pf:a,tYPe: -.which r: :•,.,d.be,mconis,tent = is:Jona ,. Rom. ; - The"defendan ,, >�>,. f,:s:z r. i., � �" �Y:• thanR'.Daytori":and with.tlre spirit,of preservm the., set until trial (see, McNeely;v:Xarri- could not sell •produce not-grown,on,the ...: Charles + ::..v g; sererutj%Lof F F = s: t';+_ ju;" >uf,, ;;�r;�!: - `: S Dayton;(herein,,the Daytioiis) residential areas. �8' A.D2d.;909,> 617_ N:Y.S.2c�;'879; Prerriises. ` 4 .t.,; +`: }; ;": ri) i4i., 4�. t'�:3i: Y : _ �.c.; , "s. ;; ',j wr:r; i c,;%, `: ,:f *:}, cultivate a:truck',gaMeii:iri a residential`ion- � u East long 1a 'Yosp.�117,A D2d Affirmed ;;nT :.j+ i::-,•,• ,•, Finally,'.the plaintiffs failed to establish dt,: •,,, , .t{ J �s :tF;, `+i •. _ �,r}_,,. - d�ct.m•.th .,: O::N.Y:S2d,,.102). `.Contrary to the :¢„ ' �: i'i +)r,�s:.:C;.3,i f i?�g a FV of:,East' Harri n -, :, illage ° their entitlement td'damag i `� l °� " , bsF11 .�ri€ £" (hereinafter the.Village)::}The plaintiffs own + ase'd on riur •contentiori, "the defendant.did.not iuuice•(sm,Copart Inds. v.'Cd; solidated Edi-- ' Zoning and Planning�302 :i':<,';E,r`,i� „' the property:directly:across;the;road;from son"Co. b N.Y.;.;41'N.Y2d•564,399 N:Y.S2d y, waive.the,,=obiection2by,.stipula"g i i,:xt ".ham �- that of the^=Dayton:-:;It{-is�,'clear lidm',, f' f ae.the action before a religious tribu- . ;,:,Under iorung cod&Oftnitting trir"cicgar' _ / 169;:362;•N.E2d i 968)= , `Consequently;::the Matter:of Manufadurers,Hanover den and�,aecessory'iises'iri.residential'=dis v 1 ant rec°rd;'and.indeed it'is not'disputed, of action based'on nuisance was'prop Vt .+ r : that, consistently,since 1987 for;the months _ trios farm''stand sellin roducts on ,,. , ••. ; erl o. .v..Po wU; -121 ,A.D2d .384,-503 ;1., g,p groa'r!:tR- ,e of y drsm�ssed. 40� �ner_v. lY sLran.Fibers, 7$ May :October the Daytona h v - d a truck garden'was'cugtoman7y'mcidbhtal;ortr •� a ec,t *; .,;•r i7:rt.: ;t.r ,r c; i;u: t v "u'sual`aecesso se"of:the truck en'fbiits operating.,a.;farm L stand,,on.this.,property,162, I.Y.S2d_343). -.7o the con- , �'" ''• which terns that•are not ;he,-record makes it clear,that the sale`of products 'brought"from other 1farms;;=, ': Se '�, grown,on,the T t, �. subject Property.+,.The,plaintiffs do.not chal- personal jurisdiction was specifically would'constitute commercial activity in cons rs � w len + " b -that , 3'z rt ge the use of the Dayton .propert as a t the issues to- be resolved. tent with residential areas. Y=, and therefore remained unresolved i truck men. -Instead, the plaintiffs object „ - . ,l ` to the Dayton' operation of the farm stand. {.,; 234 A.D.2d.625 ye tribunal did not convene and the L,;Kevin Sheridan Smithtown for �'`" i The PEOPLE of the State'of :'. f Pp -tW 1 r�: Pursuant to`Section 57-2(B) of the Zoning t:>• _+ reverted to the court for trial s3,:.• r New York, Respondent,` lants-respondents.;. , ;:. +ems .-, .< Code of the Village of East-Hampton, ;ote -that-the recent amendment to Robert C. Crimmini, Riverhead,,fore re "[nlurseries,truck gardens and greenhouses" v. ..:,,. t3211(e)-(L'. 1996, ch. 501) does not spondents-appellants: ' ' are permitted uses in residential zoning dis- Kurtis J. BOTT:Appellant. r i ;^$,;� = trl the Zoning 1�re. ... ,�:::�•= r f: � g . ; permits .- Further,: Code Supreme Court Before MILLER,J.P.,and.SANTUCC,I,r 14 : "accessory uses" in such districts (see, Zon- ing P Appellate Division, Or; ? FRIEDMANN and KRAUSMAN,JJ.. : fir:> w� = mg Code of tfie'Village of East Hampton Third Department TNUMBERSYSTEM " •. ,,.,.: 1•: �'ta{,t § 57-2[B][7j`). An "accessory use' Es de- wl .MEMORANDUM•'BY THE COURT. t �„•= ?54 + ,, Dec. 5, 1996. , -.: �'• fined in the Zoning Code as one that is ,. -, In an action, inter alia,'for a permanentr (�.: customarily incidental to and located on the injunction barring the defendants from open}X.41 same lot occupied by the main use" (see, Defendant was convicted of attempted ating a farm stand on property located across y �ty� Zoning Code of the Village of East Hampton first-degree _rape, for the sexual assault of 603 NEW Y .:SUPPLEMENT,- 2d SERIES . .,, ;t '•,• MEMORANDUM:BY THE COURT. 198 A.D.2d 349. 198 A.D.2d "In a proceeding pursuant to,CPLR article In the Matter of James-R:COLLINS,'` 78 to review a determination of the,Zoning ,=~` In the Matter of r et al., Petitioners-Respondents,; r,,-`"`:' J. (Anonymous), Board of Appeals of the Town�of Lewisboro ( Ym ), v dated June'28, 1991, which, after.a hearing, } (y' 'z``s granted the appellants a;permit to,construct :i',s• „ , -,William Jr;. ;� '' '' i,. ,'ORANGE COUNTY D' a skateboard ramp..upon certain,conditions, etc,,;et,.al.; Iteapondel►ts,;(}:,'x ls,<:, the appeal.is .from a judgment of the Su- SOCIAL•SERVICE: reme-Court,'Westchester C Herold, ` Charles Fred ,Yacylic,'et al., appellants.' P County ( Supreme Court Appe J.),entered August 27, 1991, 151 Misc2d 9(A, Supreme`Court; Appellate Divisioa;,,�-'', 574 N:Y.S.2d)495; whichigranted the(petition Second De pa - Supreme Second Department.'`` i_`4 r:.l`, f and annulled the`�determination. ' i,..; Nov. 15, 1 •'Nov.,15,,1993. ;_,.,: {"i. ;;,. + !:ORDERED that the judgment is reversed, },:a.;:'' t'<<,NO}• on the law, with costa payable by the peti- ; ; ...,`r Great-grandmother p ;! u, tioners-to the appellants,the determination is :;, Property;owners petitioned to'set aside confirmed, and the proceeding is dismissed °;;;;`; `';, dy,'of great-grandchildre determination by'-zoning. board of appeals ,, : placed in foster care. L PP on the merits. Orange Count Ludmere. that erection,of,skateboard ram b om- ... ,. , ,: `,'"�'•.�"; g Y� P . Yadl-.• , ing property owners was cation for custody.. Grey `permitted accesso- - [1,21 A zoning board determination •; ,, u ry structure„ customarily incidental,to;resi- pealed. The Supreme reme Co should not be set aside unless there is a t�:;�, , dential'use. The Supreme.Court,Westches- showin of illegality, sion, held that great-gra- ter County, Herold;,J.'granted petition and g arbitrariness, or abuseyR entitled to custody. of discretion (see, Matter of Fuhst v. Foley, ` annulled determination,.lbl Misc2d 994, 674 t;,;. 45.N.Y2d. 441, ;444,.410 N.Y.S.2d 56, 382 , Affirmed. N.Y.S2d 495,•and adjoining owners appealed. N.E 2d•766, Conley v. Town of Brookhaven ` The Supreme;Court, Appellate Division, held Zoning Bd.of A 40. N.Y2d 309, 386 that determination that skateboardP ram ;was N.Y.S2d 681, 3b3 .N.N.E2d 594).. Therefore, I. Infants e-226 permitted accessory. use had rational;basis "the determination•of responsible local offi- Po Record supported F€ and was not,illegal, or arbitrary and Capri- vials s ....will.be sustained if it has a ration- ing that children who had cious. al basis and is supported b substantial evi- *;c - _ PPo Y had bonded with their f- Reversed: • ' dence" (see, Matter.of Fuhst v.,Foley, supra, ; ' that plan of county depart{ 45 N.Y2d at 444 410 N.Y.S2d 56, 382 : r vices for children to rema N.E2d'756): `We find that the' Supreme YY,' lies pending v�«,�.. p g their adoption 1: Zoning' and, Planning' �610;`(612, 621 Court erred in annulling the determination of- was satisfactory in meeting Zoning board determination should'not the Zoning Board. The Board's,determina- . r and feared toward goal of, be set aside unless there is showing;of illegal- tion that a skateboard ramp.is a permitted ;'„_, of adoption; accordingly,;, discretion. accessory use because it is customarily iris- . .�`r",' ity, arbitrariness; or, abuse of ry y _. y {. .• :., :: :;•,: : :., ,, T.: of children was not en I dental rto. the:,primary•use,, had.a.;rational McKinney's Social Servic 2: Zoning and'Planning C:?304:1i;k:`T' basis, and was not illegal, or;.arbitrary and 384—b subd. 10. !.. Zoning,board's determination that'skate- 8 ' capricious. board ramp.was permitted accessory use be- 2. Infants a226 . cause it,was customarily incidental to pri- . ;'r•_...':, .. Members of extende wary use had rational basis,.and was not ;. ;t ,. t :` who has been surrender ,• ., :. , _ _ der, illegal, or arbitrary and capricious.. _ rrµ;:,. �, , • T ,;. r'" , agency for purpose of ado t, w ', . ' vial nonconstitutional right which permits them to ov- Jessica Bacal, Katonah, or,appellants.,,'. agency to place child for'a Thomas T.Antonecehia; Katonah,for peti- ;,;:; ';i i'-. �;. five parents to be selecte tioners-respondents. Before THOMPSON, J.P.; and ;L.f;,:.'`::; ; ,.` Kastein & Green, Plai, ROSENBLATT,MILLER and RITTER,`JJ. ,;,k;;; „• �, ,. ,.,(;.; Y;- .,Green, of counsel), fqr ap• 4. - � - .. i } •`. -, .'�� - ILL. '�' :J.'- - . W. .ti'- + ...,.`' .,.}.a=•.y:iF.�'+i:M": - •�1.�`i n'"'ti=i'::.`%.,�'j,'•C. ' �>:. -.t t' :,:fie<ZYti j`•~ :4'.%'•' :?: �:f�< 4f .c+ .�:, ;.M,,:�':'� ,'t:'•�4;,. .:y.:rl.(..Y :y i..t...t.:_, .:` .. 7 � "jy.?%Y.{.._'•ra'dlA`'`..h.�?l'.:'= r. iJ tF,,tiv'1S4,r s{ ;k.,➢, _ '1.!7.�:. -.: ' ' " .l '\ 'W aF. _,4-.j,l t'.4` -^t•'�y ..,I.y-..I.:iY.v,:.!r'.'.:Y<..,�,^.I.%�:�...:?.j'/y':�'.:5 `�G•�aS.,:e,=,$,:-' ''YY - y• - .1,''i J:7.)fS.�.,i'..:'.q,i..:r..,T ':•If`:s ri,�'"'N.�'rv?-.. L'b.•.:t' .1 is'..:'.e. .sfs'•'It: �..'�'=:.1•.:3:•.', �., >.?r' :+!q.r ^ba� .r,'J„,-+=:. - ' 1.:.,1, '„!v>•;." �'\IYv. -t'-,..�- �KS'!�i�fy'•',.,.'l�,<1r�4 t4•-.., -.1 :1., .Y.j'+�'•=f.1•F;1• . 0. _T� .<.,y �^'i•if,h:{' ., - 'i•-�.rt T�:.':�1r1.^ �;:P;k'.1n:'a; .�1.;',..i, ,'=!<.w•azi:�= ,. � :SZ�..; .1 .$. - - ii;'-. 4 tee'-Lyi7{�'j J�• fiyt_ 'f' 4���2�?y',:j!:.�.. '•]+'�:�. ''R• li •Ii .t.c:v., w R •S..•" :./.' •'4. •Y:•�ir`,`�^::ti. a y�':. i.�:,! nd ,. - .•i' �V' -Xa 7 `�/,r,' •. --4�+1 1 •-sue: fr •t'.y'.'::,'Ic`.,•b-k.i".s....r,.> ., - `•`C€PP�,�l .r•1Z:`� '��•t,'1'"-4.Ri.E� v'. G.,',i%',��:�_e.!�'i%'7S. �`>• {3{..,,',?-, i',{•,'c..::'?',_ -_ ___r�r i''cl�D+ NO ''�'-' ! ,c�Ci' r ,7�ak�•'"T[.- aJr-.', �. .,�:.1• _ 17`,` _i ., '.. -_ ,.,i'rs:+cL$d:.tc•,.' ;,:x+;,.•;,�..•<.ir;,waXi ,?�SIt.-- _ _ _ ES CRANE v. BITTERMAN 179 Cite as 390 N.Y.S.2d 179 A, P. J., and SUOZZI, 000 and paying its principal officers$25,000 ' GULOTTA, P.J.,and SUOZZI.and MOL- 'NS and MARTUSCEL- '{ each in salary, $34,000 of that having been LEN; JJ., concur. paid for services previously rendered after the corporation went out of business. .Un- 'HOPKINS and -MARTUSCELLO;:'JJ., i BY THE COURT. der these circumstances; the. District Court dissent and vote to reverse the judgment (Zavatt, C: J.) branded the payments and grant a new trial, limited to the issue -ainst two .officers and "fraudulent",' stating, in' •pertinent part, of the. propriety of the 1973 salary;pay- ,�orate judgment debtor, ` that (p. 919): ments to defendant John J. White, with the ,aside allegedly improper `'"" `= "The compensation' paid to a' corporate following memorandum:, isfers made by it, plain- ) officer must be in proportion to'his abili-- The evidence is unclear whether the said a judgment of the Su- ;j' ty, services and time devoted,'corporate salary payments made' during the entire' rns County, dated==Febru- earnings and other relevant fads and calendar year of 1973 were proper in view i.h is in favor'of defend- circumstances: Stearns v: Dudley [Sup., of-the-financial condition of the corporation jury trial. 76 N.Y.S.2d 106, affd. 274 App.Div. 1028, at that time (see .Glenmore Distilleries. Co. J 86 N.Y.S.2d 478], supra, at 127. ' Al- v. Seideman, 267 F.Su . 915 E.D.,',N.Y., med, without costs or dis- '� PP [ . though the respondents claim to have de- 1g67]). The evidence is"also imprecise as Ito > voted full-time service to Dundee [the the services rendered during that, year.'. ; 'rial.Term properly deter- _ ".z`: corporation] during the •short period it before it.. was:in business, Dundee sustained a net ' view of the minority, we loss of approximately$180,000..' Not until •-n that the evidence ad- Dundee went out, of business did it pay w o E KEY NUMBER$YSTEM clearly supports the.con- the _respondents. the .alleged salary 'pay- T ,alary paid-to Mr. John J. ments of $34,253.32. ,During`the eleven 'nt of J. J. White Ready months of its business activity (March -poration during 1973 was ,.• ;r: 1964 through January 1965), Dundee paid each respondent, monthly, a salary based 55 A.D.2d 669 ansfer of corporate assets • _� rf! - ion 720(subd.[a],par.[1], upon an annual salary of [only] $12,000, Bernice CRANE, Respondent-Appellant, ` i.e., $1,000 per' month. ' ' The he Business Corporation {, court cannot find that.payments of annu- V. a fraudulent conveyance al salaries of $25,000 to each respondent, the meaning of sections a..,• Cynthia BIT'fERMAN .et al., Appellants- of the Debtor and Credi- Y,;, under the circumstances, were made with. Respondents, et al.; Respondents. ' fair consideration. Rather, the court „ finds that the payments under scrutiny- , Supreme Court, Appellate Division, =ady Mix continued to be °: . were without fair consideration and are Second Department. ,in business throughout the fraudulent, as to Glenmore; that,they 73, employing eight em- ;y T, were made, when Dundee was insolvent/ Dec. 27, 1976. ig Mr. White his regular and are fraudulent as to Glenmore; that ., -thout increases from prior a p the payments were fraudulent under sec- •�• �l•; ;,,;•: ,,:: � - � '' -nce stands uncontroverted S,, tions 273 and 273—a of.the N.Y. Debtor Appeal'was taken from judgment of does Mr. White's testimo- a¢- and Creditor Law. This;is"so regardless the,+Supreme Court, Nassau County, direct- _"` y ,ing.defendants to remove construction sur- .ed all of his time to the u of an actual intent io defraud" (matter zing 10 to 12 hours per day, in brackets supplied).'! rounding,,three sides of tennis court, and There is, moreover, no Clearly, that holding:is ,inapposite to 'the' ,plaintiff;cross-appealed` from declaration salaryji was either exces- facts at bar, where'the corporate*o :.officer that,- la ro surface,of court required no P Y, g; 9 cable, or that the corpora- :' merely continued to draw his regular salary building:permit or certificate of occupancy. leive full value in return. r• of long-standing,,while devoting his -best The Supreme Court,, Appellate Division, �•. 'tiller?es Co. v. Seideman, .';. efforts to keeping the •business "afloat". held that clay tennis court was permissible Accordingly, no impropriety has been dem- as an accessory'use, and that the court was fE.D.,N.Y., 1967), relied on is distinguishable on its ;: onstrated. ;, t ; : "unoccupied space," rather than a use that ci,case the defunct corpora- ,We have considered appellants,remain- occupied area,for purposes of limitations on in business for only 11 :_..; ing contentions and find them to be lacking percentage ofloot which may be occupied by .curring a net loss of $180; '. in' merit. , principal or accessory buildings or uses. D,M.G. CONST. CORP. v. DIARCELLO 1 Cite as 380 N.Y.S.2d 181 s 390 NEW YORK SUPPLEMENT, 2d SERIES K:: :3 ' 18O :'ia -:::a`;:?',' markedly-akin to open, unoccupied space", 2. Judgment —143(10), 153(1) "'( T-7. '= ? as the ordinance defines a yard (op. cit., Plaintiff was entitled to be relieved of Appeal dismissed as academic in view Appeal by defendants Bitterman ;dis=: _ -x` :•. § We conclude, therefore its default and to serve a reply to defend- j ��-;>�; :,,.; 20.01, subd. [7])• of grant of 'variance; affirmed on cross missed as academic; without costs'ortd�s' that a clay tennis court is."unoccupied- "ants' counterclaim, where plaintiff's amece Y Y appeal. bursements,in view of the variance granted;. 1 :,,_*: y PP 9; ti ',,,.,; space ,as defined by the instant ordinance, ne a failure to serve areply-was a by the Board of Zoning A m- eals on Se�:tem=;� T„': g PPe P.- ;r-z.. -i �; ." :^r rather than:a'use that occupies area. oversight and where counsel acted with im- rc ber 15, 1976. s mediacy to remedy•the situation. 1.•Zoning i fai H�-�-"160 4 4f.1�1i Judgment otherwise affirmed; insofarass�: x�y . :3 �F. "{3^'f. ..: Phrase every use customarily' inci- w . appealed from, without costs or.disburae�;''r `: ;Ny O E 8ET NUMBER SYSTEM Floyd M. Lampert, Flushing, for appel :.^';:; f -dent",to the principal building or use,-in ( s y : ments. The stay of enforcement.of. PO'- ;�;M, ���;Y�{ T lant. �,. zoning ordinance permitting such incidental tion of the said -ud ent contained.in;,the,r; r ; J 1 -t use as an accessory use, embraced a clay Jr;;,:r ;,;' Russo, Dworkin,,Taub, Fusco & Kuffner, :r>l order of this court, dated June .10,:1976,`isj;� :x; .. tennis court, in.a Residence A district. "� P. C. Staten Island (John A. Fusco and ,�-.r.: c 1 hereby vacated.- w '4 �b> ' = -r Jr., Staten Island, of :, �,::- a. Charles A:`Kuffner, N ` 2:'Zonin `f_r•' S5 A.D.2d 670 ,i; ;'' • g �'278 ,Plaintiff 'and defendants Bitterman''a're ffti ;: counsel),:for respondents. ::. Within Toning,ordinance precluding noncontiguous neighbors in a district zoiied,j'» $;E fir; D.M.G. CONSTRUCTION CORP.,'' ;. _ _- `zT•' ; ' principal or accessory buildings or uses oc- Residence A. Plaintiff contends tliat' there y Appellant,'_' '; Before GULOTTA;'P:-J' and HOPKINS, ,;.' t � 3 ZZI• JJ. cupying more than 25 percent of area of lot tennis court constructed by defendants.Bit- ,.. MARTUSCELLO and_SUO , ? ry 8's terman in 1969 is not-a lawful accesso Tise:, _ ,.. and precluding accesso buildin and use's ry.. . ;� .:__ : t al Res ndents Jose h MARCMARCELLO , MEMORANDUM BY THE COURT. from exceeding'7 percent of area, clay ten- and that the building-permit which issued !�� ,; P }';' " P P '� for'construction'°of the tennis-court';an&for,-Zl:w; ' . nis court was unoccu ied s ace as defined " ]late Division, In an action to recover damages for h-:._i, ,r'.•C.=A:t ,. Z:.r::,t . asr,�,�r Supreme'Court; Appe by the ordinance, rather than `a use that a'trellis or.back-stop on three'sides of Tthe:• ; �-.;` `r Second De artment. breach of contract, in which defendants in- '~ occupies area. ,�._ court was unlawful. Plaintiff further`"con „- ,... = terposed a'counterclaim, the plaintiff ap ,• ;,w, ,. See publication Words and Phrases tends that even :if the tennis cbu'f s:tr :w Dec. 27, 1976. ' , , ., peals (1) as limited by his brief, from so :kc,i', t for other judicial constructions and deemed a'dawful accessory use, it must;:inr eti^`. s,- much of an order of the Supreme Court, .. ..... - definitions. �s ; any event, ciomply-with' area`linli ��£ rF = Nassau�County, dated June 30; 1976, as (a) .,... �. ` . In an action to recover damages for . tations contained in the ordinance:' ;: , .,'._�=:4<,�a`�'. granted"the branch of defendants' motion which sought summary judgment on their a.�. . Koeppel Sommer Lesnick & Martone, P. The ordinance rovides that an accesso breach of contract, in which defendants m- "' = laintiff, appealed ( Siegel- use Includes every use customarily incident; w'ry terposed a counterclaim, p 1?Pe counterclaim upon plaintiff's default .in C. Mineola William D. Sie eland Adolph 1 from so much of an order of the Nassau and (b) failed to grant Koeppel, Mineola, of counsel), for appel- to the rinci al buildin or use, and in 4 " x V : O serving a reply, - _P. P - B_. 'YY Count Supreme Court _as 'granted the plaintiff's application for leave to interpose ]ants-respondents. ' P eludes all of the uses specified as accessory,, ';.;:;;,. y P Li Ruskin & Schlissel, P. C., Mineola in this ordinance (Buildin Zone Ordinance;:fi:= s; r branch of defendants motion which sought a reply and (2) fiom a further order of the (Stephen W. Schlissel and Richard A.'Lippe, of the Vill. of Great Neck Estates, §20.01-a-# y summary judgment on their counterclaim same court, dated June 28, 1976, which de- r'' ='= upon plaintiff's default in serving a reply, 'ied the plaintiff's motion which was, in Mineola, of counsel), for respondent subd. (201). "'''.''` ;: s~.}r_ ant plaintiff's a plication , ' •.,.f lant. and failed to grant P P effect, for reargument. [1,2] We interpret the phrase "every s 1a for leave to interpose a reply, and (2) from use customarily incident" to embrace a clay'-' 'T ,Vss` a further order of the same court which (1] Appeal from the order dated June s Before HOPKINS, Acting P. J., and,CO- 28, 1976 dismissed, without costs or dis- z; ,n'.• tennis court. The ordinance also provides'":"'# :_ ;'4 �• HALAN, SHAPIRO and SUOZZI, JJ._ denied plaintiff s motion which was, in ef- bursements. No appeal lies from an order that: : <_--ri;r a.� feet, for reargument. The Supreme Court, g J -'` llate Division, held that plaintiff was denying reargument. MEMORANDUM BY THE COURT. "No principal building or use, to ether' ;yW Appe In an action inter alia to (1) declare that with its accessory buildings or uses, shall,'';-i_:�;`:�:;.:, . entitled to be relieved of its default and to Order dated June 30, 1976 reversed inso occupy in the aggregate more than.25`90 ' ` :'-� ' a building permit and certificate of occu- PYserve a reply to defendants counterclaim, far as appealed from, without costs d dis- ; •'< '- panty were illegally issued and (2) enjoin of the area of the lot. The total area :.^=;_ � where plaintiff's attorney s failure to serve bursements, the said branch of defendants' occupied b accessory buildings or uses = ' •" J' motion denied the plaintiff's application to r P PP ,r the use and maintenance of a tennis court, P Y Y 6's5:;"sz a reply was a mere oversight and where , shall not exceed 7%of the area of the lot - ;�=��3 counsel acted with immediacy to remedy interpose a reply granted and the propose (1) defendants Bitterman appeal from so k,. .=-u a; 40.01, subd. 4 " i?'`` M" reply annexed to the plaintiff's papers on _! much of a judgment of the Supreme Court, (§ ( ])' the situation. P Y . .....2 5;;:: its motion for reargument shall be deemed Nassau County,dated May 18,1976,as inter Plaintiff argues that the words building ... : Y,, . Reversed. its reply. alia directed them to remove the construe- or use embrace the clay tennis court, irre „ '.:; a . e 4 tion surroundingthree sides of the tennis s ective of whether the court (excluding [2] On the facts of this case, we be id ;..F. - court and (2) plaintiff cross-appeals from so the trellis) is determined to be a structure. . 1. Appeal and Error �110 that the plaintiff was entitled to be-relieved •'• �r ijayQ_ �;,t jn4jccr +nt,�C declared xhaL p1gQi§� what. the ordinance intends by a _.;;;; :-' •' - rder denying of its default and to serve a reply to the - > ant lies from SA 4._ .i't w w ,cw, - 180 390 NEW YORK''SUPPLEMENT, 2d SERIES markedly r ' Appeal dismissed -as'academic'in'view Appeal by defendants Bitterman dis- as the orrL of grant of variance;• affirmed on =eross missed as academic,, without costs or dis- § 20.01, su, appeal. bursements,in view of the variance granted that a cla- j'� by the'Board of Zoning Appeals on Septem- space", as c 1. Zoning"e-278' ;. ber 15, ,1976.' j ' , rather than �,.'_ . Judgment otherwise affirmed insofar as Phrase "every 1 use•;.customarily inci- k dent" to the principal building''or use, in ' appealed from' without costs or disburse-' zoning ordinance permitting such incidental ments. .,The stay of enforcement of a por- ' use as an accessory;'use, e ,. tion of the said judgment contained in the mbraced a 'clay order of,this court dated June 10 1976 is vd{ J :E tennis court, in-a Residences A•district:. •• + _1 :^ hereby-vacated. } j 2.'Zoning -�278.,', r ;• ;+• Plaintiff and defendants .Bitterman are `Within zoning ordinance `precluding 'noncontiguous neighbors in a district zoned principal or accessor 'buildin D.M.G. p p, y; gs or uses oc Residence A. Plaintiff contends that the cupying,more than,25 percent of'area of lot. tennis court constructed by-defendants Bit- _ and precluding accessory buildings and uses terman in 1969 is Hots lawful accessory use g from exceeding ? ercent of area cla ten- s':; P Y and that the building permit which issued Joseph M?- '� nis court,was"unoccupied space" as defined � for construction of the'tennis court and for =r<% S''' 'r. by the ordinance, rather than a, use that ;a r Su remF%sA�� 'a trellis or back-stop on three sides of the P . occupies area. _ ::<. : s 7��•L court was unlawful. 'Plaintiff further con- '! 1T ;• See publication Words and Phrases tendsr r' ' that 'even 'if i' the tennis t is for other, judicial constructions and court definitions. deemed a'lawful`accessory use, it must, in +k any event comply with building area limi- ?; tations contained in the ordinance. t:, Koeppel Sommer Lesnick & Marto ne P. ':, In an , The ordinance provides that an accessory L breach of cr "(:��'+' C., Mineola (William D. Siegel_and Adolph use"includes ever use customarily Incident Y Yir7 terposed a c Koeppel, Mineola,-of counsel), for appel- the principal building or use, and in- '=''' (1) from so ► lants-respondents. 7 �.' •, eludes all of the uses specified as accessory rills . Pe Y _County Sup `fill. Lippe; Ruskin Schlissel, P. C., Mineola' in this ordinance"(Building Zone Ordinance branch of d& �i,•,' '`'' (Stephen,W. Schlissel and Richard A. Lippe, of the Vill. of Great Neck Estates, § 20.01 ' Mineola, of counsel), for respondent-appel- 'subd. 20 :�' summary ju I )) „ upon plaintif, lant. r •_'y, -• t ,,. �, [1;2] We-interpret the phrase "every r_ ., and failed t for leave to Before'HOPKINS, Acting P. J. 'and CO- use customarily incident" to embrace a clay Y i,q l;li HALAN, SHAPIRO,and,SUOZZI, JJ. provides �,<''< _ a 'further or- tennis court. The ordinance also ied plaint that :,r' �, den L.:. ' MEMORANDUM BY THE C.OURT.� "="No principal'building or use, together r ' feet, for ream >n APPellate Di- i � ,.;, • In an action to (1).declare,that- 'with its accessory buildings or uses, shall entitled to bF a 'buildin permit and' certificate•of.occu- `^occupy in the aggregate more than 25% '�;;:;t,.:.,. g'P of the'! 'of the, lot. The total area anc were illegally Issued,and z'` serve a reply s ,•, .P Y g Y (/.) enjoin . - ?' occupied b accessor ' buildingsor uses where plaintiff he use and maintenance':'of a.te.Inis court, P Y Y 71 a reply was ;i::, ' (1),defendants' Bitterman:appeal from'-so shall.not exceed 7%.of the area of.the lot ��a : Vii.Y acted- much-of a judgment of the Supremc=Crt,., (§ 40.01,;subd. [4]). • ; ^;,,, '. counsel " the situation. Nassau County;dated Mayt18,'197ti as inter Plaintiff'argues that the words "building alis directed them to remove."-the'construc- "or use"embrace the clay tennis court irre- '''` " C - Reversed_ n tion surrounding three sides'of the tennis °spective of'whether'the 'court (excluding ter• court and (2)'plaintiff Bross'appeals from so the trellis).is determined to be a structure. + r" much of the said" ud enf as declared that Precise) what the ordinance intends b a ` ' 1. Appeal ant, j g►n y, y ,j 'the construction of the'playing su`rface'of "use"' that occupies area other than one ,' No appea f• the"tennis court required%n'o building)permit that 'involves a structure is not without reargument. a � < or certificate of occupancy:'' ''"` ` difficulty.' A clay tennis court is, however, r ,,r'��,: ').'%t:. .;.L,.•'sif„tiY rR' ..,L.- r.,�;•. 'V?%y'''y n;,-;1,.> - ,:,.. '.i., j 1 -- -- - -— - -- - - -- _ a:-' ��'' C3" t. - -ii.•Ln;..aw'IC'': '6-' - S ;:^e..-r:" .7 ••,f,-. r, .,{, �..t't"+%i:r. .3' 'ui•.,- ,,ya, _•.".r::�-: -tirr�:: .,yMl•') Y:+ .1,, rJl;. fi ••ti'"• :�•'S. ::{L': q - -/.' .i,R•• .�r< i}.++.. ': .T•, ,,L-;(t .i:l. =r:.tr Y..+. :.} - �f.. .rl! , r�f'•i^iir`(i: , ':1+!k,. •... E. ,�,•.` '�sx r,�,t; .t,li�'•t...a g. ":x,:l 4,�;ir„a.t '%��•:>:="�.• ,?�' ;,r _ 1; 'V��� Jx~_.:ice-' •:1'. y { 'e�:- 1- V�;gin t-' :.,•�a�'1,;6trc�' S:'�,. 7 fib.,, ,a' "):�'• ..,{''''(. �{'" - ti.'L' �'_5+.. :'j, ,ggtJ•r•��i'i�. iip'i-•j:'.a "'1`S•.Y ,t:'1::,..k'l.ter' wn,:lii'r;.w - -:,���� "'Sza - •':i r - 'k5,,h^ ,y f....+t,�-.�, 4�:i`$7F+• _.i:; - _ .o, >•n:• :'j' •>r. - . - LF: .„> At, .t' _r, <:f-'• F .j,. :�.` .C._.,x.. ^.r; -.�. 1`7 - R•r.Y fM, VY t }S FyR :jy S�A •5 F.r• _ v r• _ ,pia, ..fix t si. p j'.•;. �'•i• :::I::Pam. , _ "r. v't. - ;:1 ✓. ,4`z. "(:`..'.�._.,r'sLJ .a s.r='r.r ":rs+':( ''k' ' :, - :co- - - .,:a .q.a,' ; tl,,. ,.r .,.� i::?t•` iSl, - , J." r'i ..p, .N:"" .4 eG.... ✓. r:. • ma's '- '�'' 1 - y., �;1.. ✓i - yes•:,' - -,{ 1,{e -,3 .!s ! �b`' t `S',-U�• "y/ r )' }r',J n }' µ�` f ..1, - ��"'�,^ a t•i, n.fir,�•-�y :~9 - -_p it _ :(7; - - hN t J"ir.- •i' �M. :'t ., , r'f et ti •j , N v _ yr r} gy f-f it Y• cC ,is i. - s''S" 1.. - �y. .f" (r- .i, ^�Ni Y.r.•'p ''('S- - 1'".Yr,.;`.:',r�:..'1_^':t' ,�1: ':• t - - - I Y5 r.r•- r^Y: '.t':' `,{V+; .,1 4 <I: :,Ili,'n, _ '�',�'i{�''•K r. - 3.f�'fMt 'i - •fib" �..5.'_. .i• .,, rlr.•,; �,.. BEGAN & KEEGAN, L L P ATTORNEYS AT LAW 147 NORTH OCEAN AVENUE .PO Box918 THOMAS J. KEEGAN,JR. PATCHOGUE,NEW YORK 11772-0918 EAST END OFFICE DEBRA A. BYRNES TELEPHONE (631) 475-9400 315 END ROAD DANIEL C.ROSS FACSIMILE(631)475-0601 P O Box 146 MATTITUCK,NEW YORK H 952-0146 ******************** (631) 298-1200 JAMIE ROSNER (631)298-4427 FAX THOMAS J KEEGAN RETIRED June 2, 2003 �tr, ER - 2 2003 Southold Town Zoning Board of AppealsTown of Southold Town Hall53095 Main Road —rR or 4PP ,4LS P.O. Box 1179 Southold, NY 11971-0959 Attention: Ms. Linda Kowalski Re: Appeal of Madeline Droege Appeal No.: 5186 Premises: 885 Petty's Drive, Orient, New York Dear Ms. Kowalski: Please find herewith an original and seven copies of the applicant's second submittal regarding the referenced appeal. We are serving Ms. Moore with a copy. 5. s Dame DCR:kr cc: Madeline Droege data/town/droege-ZBA4.1tr - EEGA N & KEEGAN, L L P �\`QJ ATTORNEYS AT LAW 147 NORTH OCEAN AVENUE P.O Box 918 THOMAS J. JR. PATCHOGUE,NEW YORK 1 1 772-09 1 8 EAST END OFFICE DEBRA A. BYRNES TELEPHONE (631) 475-9400 315 WESTPHALIA ROAD DANIEL C.ROSS FACSIMILE(631)475-0601 P.O.Box 146 MATTITUCK,NEW YORK 11952-0146 ******************** (631) 298-1200 JAMIE ROSNER (631)298-4427 FAX ******************** May 30, 2003 THOMAS ] KEEGAN [JUN E � RETIRED Southold Town Zoning.Board of Appeals ' 2 2003 Town of Southold Town'Hall 53095 Main Road P.O. Box 1179 D O- .�r_s Southold, NY 11971-0959 Re: Appeal of Madeline Droege Appeal No.: 5186 Premises: 885 Petty's Drive, Orient, New York SCTM: Dear Board Members: We represent Ms. Droege with regard to her appeal wherein she seeks a setback and height variance and a reversal of the Building Department's position that a use variance is required. Proposed Wind Turbine is "Customarily Incidental' to the Principal Residential Use and, as such,is an"Accessory Use" Under Section 100.31(C)(1) of the Zoning Code The proposed Wind Turbine is an"accessory use" as it is"customarily incidental" to the principal residential use under section 100-31(C)(1) of the Zoning Code. On the first day of hearing, the Chairwoman requested the applicant to elucidate on the position that a use variance is not required in this instance. The question was phrased as `What does customarily incidental mean in the context of a use in a residential zone.' A review of the case law reveals that simply relying on the dictionary meanings of y , customary and incidental does not answer the question. The-determination of what is customary 0 and.incidental is premised on fact-based analysis. New York Botanical Gardens, 91 NY2d 420, 671 NYS2d 426. Therefore, a review of other Zoning Board of Appeals' determinations of what is a customarily incidental use in a residential zone that have been upheld by a Court should provide some guidance. 1. A coin operated milk vending machine in a restricted residential zone was found to be an "accessory use customarily incidental and subordinate to the main use." Dellwood Dairy Co. vs. City of New Rochelle, 7 NY2d 374, 197 NYS2d 719 (1960). The Court permitted the milk vending machine even though there was a commercial aspect to it's use. There is absolutely no commercial aspect with regard to the wind turbine use. 2. The case Matter of Presnell vs. Leslie, 3 NY2d 384, 165 NYS2d 488 (1957), which is relied upon by the opposition to this application, is not applicable to the case before this Board. The Presnell case involved a tower to support and be used in connection with a radio station duly licensed by the Federal Communications Commission. This is clearly a commercial use unlike the proposed wind turbine at issue here which is intended to be used exclusively for residential purposes. Similarly, Equilease Corporation vs. Indemnity Insurance Company of North America, relied on by the opposition has no application to the situation here. The Equilease Corporation case involves an.action brought on a promissory note and has nothing to do with zoning or what is customarily incidental to a residential use in a zoning sense. The Equilease Corporation case has no application to the issue before this Board. 3. A skateboard ramp was found to be an accessory use because it is customarily incidental to the primary use, i.e., residential. Collins vs. Lohergan, 918 AD2d 349, 603 NYS2d 330 A 4 (2d Dept. 1993). This case is illustrative because it clarifies that "customarily"refers to the use and not the extent of the use. VVhile not many homes have skateboard.ramps, the use of such ramps were found by the ZBA to be customary in a residential zone. Thus, the mere fact that there are not many wind turbines in.Southold Town is not dispositive of the issue. 4. A farmstand that sold products grown on the premises was a permitted accessory use that was customarily incidental to.the residential use. &;ker vs. Dayton, 234 AD2d 584, 651 NYS2d 206 (2d Dept. 1996). The Court also found the sale of product brought in from other farms was impermissible commercial activity. There is no commercial activity that will arise if the appeal here is granted. 5. A clay tennis court was found to be a permissible accessory use in a area zoned residential. Crane vs. Bitterman, 55 AD2d 669, 390 NYS2d 179 (2d Dept., 1976). Conclusion 6. As noted above, what is "customarily incidental" in a.residential zone is fact based issue. A tower for an FCC licensed radio station is not the factual equivalent to a wind turbine to produce power for a family's home. Something as unusual as a skateboard ramp or clay tennis court,can be found to be customary and incidental. As the Court indicated in the Collins case cited above, a determination by a ZBA as to what is customarily incidental to a residential use should not be reversed by a Court if it is rational. It is clearly rational that the proposed wind turbine is an accessory use to the residential structure. There is No Commercial Use Required or Intended 7. There was discussion on the first day of hearing regarding whether the excess energy generated by the wind turbine would be"sold" or "credited"back to the utility. I have w � since determined this is not the case in the State of New York. In any event, there is no requirement that energy produced by a wind turbine under the circumstances proposed here must be sold to the utility and Ms. Droege has no intentions to do so. The Proposed Bergey Wind Turbine is Safe 8. Delivered herewith is an article obtained from the Bergey website at www.bergev.com that describes a Bergey Wind Turbine that survived an F5 tornado next to a building that was blown away. An F5 tornado is the strongest,most destructive tornado with wind speeds in excess of 250 mph. The material submitted herewith gives other examples of Bergey Wind Turbines surviving turbulent weather. Other Windmills in the Area 9. In addition to the windmill identified in Ms. Moore's correspondence, there are two other windmills that are mounted on a garage in Orient. The house is on Orchard Lane in Orient. Pictures of the windmill are submitted herewith. Me s , DCR:kr cc: Madeline Droege data/town/droege-MA3.1tr w t ZONING BOARD OF APPEALS TOWN OF SOUTHOLD, STATE OF NEW YORK --------------------------------------------------------------x In the Matter of the Application of MADELINE DROEGE#5186 AFFIDAVIT SCTM Parcel#1000-14-2-24 ---------------------------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) ss: MADELINE DROEGE, being duly sworn deposes and says: 1. I am the owner of the real property referred to in the caption above and I make this affidavit in support of my application.for variances that would allow me to erect a wind turbine upon my property. I seek to construct a wind turbine for the sole purpose of producing electrical power for my exclusive use in connection with my residence. Amendment of Application 2. I draw the Board's attention to the information sheet submitted with regard to the proposed wind turbine. My application to the Building Department and the appeal to this Board was with regard to the 64 foot model. As indicated on the Bergey information sheet, Bergey also manufactures a 43 foot model of the wind turbine. This unit would reach a height of 47 feet with the addition of the 4 foot blade on top of the tower. This height would be close to the actual height of a 2 story residence which is permitted in this zone. If my original request for a variance for a 64 foot tower is not acceptable to the Board because of the height, I request the Board consider my application to be duly amended to include a request for a 43 foot wind turbine tower. 3. I understand that during the first day of hearing on this application there were concerns expressed with regard to the "fall zone" of the proposed 64-foot Bergey wind turbine. To allay those concerns I made measurements with a measuring wheel and found that my neighbor's houses are not within the "fall zone" of the proposed wind turbine. Western Property Line 4. The wind turbine is proposed to be located 20 feet from my western property line which is bordered by a 125 foot wide vacant lot. The home of my closest neighbor to the west is approximately 35 feet from the vacant lot's western border. Thus, the proposed base of wind turbine is approximately 180 feet from my neighbor's house to the west. Consequently, if the 64 foot Bergey wind turbine were to fall, the top of the f6ur foot blade, which presumably is 68 above the base, would still fall more than 110 feet short of my neighbor's house to the west. Eastern Property Line 5. There are no houses in close proximity to the location of the wind turbine on the East. Southern Property Line 6. I own the vacant lot across the street to the South of my home. The street is a dead end just to the East of my house. My house is the only house located at that end of the dead end street. Northern Property Line 7. There is only Petty's Bight and the Long Island Sound to the North of my property. Installation of the Bergey Wind Turbine 8. Submitted with this affidavit is the Bergey Installation Manual for the wind turbine that I seek to construct. I confirm to the Board that if I am permitted to erect the wind turbine, I will do so in accordance with the Installation Manual. Wind Turbine withstands F5 tornado 9. I also submit an article for the Board's consideration(Bergey web site www.berg_ey.com) which illustrates the strength of Bergey wind turbines to withstand extremely strong winds. The wind turbine is designed to withstand up to 120 mph winds. Please note the article regarding a Bergey Wind Turbine that withstood an F5 tornado while the house adjacent to it was demolished. 10. Finally, please consider that a wind turbine is a quiet, safe, efficient and reliable source of energy. It is an attractive addition to the landscape which does not pollute the environment in any way. MAD NE D OEGE Sworn to beforZe thX 3D�day of M2 3 Notary Public DANlEL C.Rt75S data/town/droe-aW.MD Notary Public.State of Nevv York No'4907175 Qualified in Suffolk county 1 Commission Expires Aug.31. 9 FROM DCRQSSWKEEGA%KEEGW FAX NO. 2984427 M� _ 0 2003 03:E12PM P4 i r Wl"d Tur 'IZE vriths meads FS i� 9. 1 also submit an article for the:B,)wd,s consideration(]Bergey web site www. which illustrates the strength of Bergey wind turbines to withsteod eXtremeIy strong wills. The wind turbitie is designed to witbstatld up to 120 tnph Winds. Please note the article regarding a Bergey WMd Turbine that withstood an FS tondo white the house adjacent to it was detmhshod, 10. Finally,Picvm consider that a wind turbine is a uiet 9 ,safe,efficient and t+elibbie souk of energy. It is an attrective addition to the landsc"which does rttrt pOnuie the environment in any way. -- - —-- ttt�� MADELINE DROEGE data/t0wa/droaaft12.b2D DANIEL C.ROSS Notary Public,State of Now York No.4907175 O.ualified In Suffolk Cou Commission Expires Aug.31, r EXHIBIT News, Moore Tornado Page 1 of 1 Bergey Windpower News Bergey 10 kW Turbine Survives Nearby F5 Tornado r�:.:�r�!,:I:S.T::..�'4:sL'ti_:�'��'w2L'-�:rn;rar�p1''��°T"0aa..nrr+?:-c-mmM+rx'rn^nmmcr_ar•,+.sv.rK�.n,m-e...�+rn"r,aannnvlu,+�rsx r11nF 10, 1999 Moore,Oklahoma: "I only had been down in my storm shelter for a minute when I heard this awful racket. I peeked out the door,and the building was gone." Delbert Thornhill described the total destruction of his garage as an F5 tornado ripped through his property on Monday,May 3, 1999 Standing twenty feet from his destroyed garage is the tower of his Bergey 10 kW wind turbine,which survived the tornado relatively unscathed. F5's are the strongest,most destructive,and deadliest of tornados and they typically have peak wind speeds in excess of 250 mph. The Moore tornado of May 3rd killed over forty people and destroyed several thousand homes. The Moore tornado passed very close to Mr.Thornhill's home,but did not strike it directly Mr Thornhill installed his Bergey wind turbine as a grid-intertie system in 1985 and has been steadily selling electricity back to his local utility for the last fourteen years. The turbine,located in the heart of"tornado alley",has experienced many severe storms over the last decade-plus, but never anything of this magnitude. The system sustained only slight damage resulting from debris impacting the machine and tower. For,example,a piece of lumber was driven Into the junction box at the base of the tower with such force that it pierced the sheet metal enclosure and became imbedded in the box. Mr.Thornhill is confident that,with a few minor repairs,his Bergey Excel wind turbine will continue to generate clean,sustainable electricity for years to come. Click here for pictures of Mr Thornhill's system after the tornado,along with more stories about Bergey turbines and tornados. For further Information,please contact: Steve Wiike,Customer Service,Bergey WindPower Co. T 405-3644212 F 405-364-2076 E-mail: swilke(fternev.com Copyright 0 2002,Bergey WindPower Co. All rights reserved. Contact: webmaster(nlbergev.com filth://Nwww.[lei-ey.com/News/N.F5.Tornado.litml 5/20/2003 Tornado-Tuff Page 1 of 3 Bergey Turbines Really are "Tornado Tuff' ._. . .. .. ,.. s'�.....:....... ...::�:�,`»:Y..:.i:>w:.;r�,.`hS;.�;r.,.ii' '".?�:pit''iirr.:a;�.;7��'�r.T+S:i�t;r�:S�'.�r} A. ti.-•,;.'tw' !:':"''+,�.C._"''_,'+.l�it,,'''�:.R�'1�°����'z E t Probably the main reason that Bergey WindPower Is the world's leading supplier of small wind turbines is that our T", turbines have proven to be more rugged and reliable than k .r. ` those of our competitors. For example,Bergey turbines are often used to replace turbines from other manufacturers that have failed: Most small wind turbines work fine until the storms come. Then the weather sorts out the weak from the strong. Our turbines are more rugged and reliable because we have carefully engineered them for reliability But then we had too...given where we are located. Bergey WindPower is headquartered in Norman,Oklahoma,right in We get severe thunderstorms quite regularly and a lot of tornados. the heart of"Tornado Alley." In fact,the National Severe Storms For example,the deadly Moore,Oklahoma tornado of May 3, 1999, Lab for tornado research is located two blocks from Bergey which killed 36 people,passed just a few miles north of Bergey WindPower The famous tornado chasers,featured in the movie WindPower. One of our 10 kW turbines,as shown below,was "Twister",operate out of this facility. By coincidence part of the almost directly in the path of this tornado. movie'Twister"was actually filmed just a block from Bergey WindPower. These terrible storms have actually helped us to develop more rugged and reliable products.We have a test site at the factory and we have over 150 turbines In the area. These units experience some of the worst weather conditions that Mother Nature has to offer. In the sections below we offer a few stories of these experiences. September, 1992 - Norman Airport ....,...,.;;E 1:.., ..,..•.:ti:::L^.3:`aT.S:"..G.S,�J'i'.i'.4..3Idi.:itL'w :3:l:Y"'-""•ud-n•4a.::;-rwrxn.-irrtafn:�^y�yuwavuxvrtr.z.:.urwc�}i :-�2C rr.,5 r47 ''!'y wilt. _ Er^ M`•E+ y'4� !'' _ r {dV X t In the late evening of Sept.5, 1992 a tornado of unknown The photo above shows several of the 20+small planes strength passed through the airport in Norman,Oklahoma,where destroyed in the Sept. 1992 tornado. These planes were Bergey WindPower's factory and test site are located. The picture approximately 400 meters(1300 ft)from the Bergey 1 kW wind above shows the damage to a warehouse building at the airport. turbine. All the planes were tied down to the concrete apron,but the Notice the wind turbine to the left,— 100m(—330 ft)behind the winds were strong enough to break the planes loose and roll them destroyed warehouse. This Bergey 1 kW unit(located at the BWC down the apron. factory)operated unattended and safely through the storm. August, 1993 -Home of Jim & Mary Driscoll f In August;1993 the home of Jim&Mary Driscoll located East of Norman,Oklahoma was heavily damaged by a tornado. The second story of their home,Including the entire roof,was totally destroyed. In fact,much of the roof was found—200 m(—650 ft)from the house. The Driscoll's 10 kW Bergey Excel-S wind turbine was ten years old at the time. It operated through the storm and was selling httn://w\v\v hervev com/Tornstdo htm Si�ni�nnz Page 2 of 3 Tornado-Tuff ` t t A• .w. - �'` `p power to the local utility when this photo was taken the next yt �; * day. The Driscoll's turbine,now 19 years-old,Is,still operating today. 5 ' h� 79 41 ' May, 1999 Home of Delbert Thornhill l=,,,<r:.as:r..:.• _:ci�:.:�;3, �r..�»�..xaa:;.�a�:r*i�:.�s:ax�rp:�:...: (; ;�:�-���t,, 'x4';,.i�:gr,��, wt;' r'•t<^.a",�t;��e'��}�hit{�+��.+.,: yf: :, :P'�sY')"�r. ;9�! tr1 i�:KiiS;•iti�;l,���it:fFff:#,'i t�r+�'.�,r ,.._k``' ^,r. s'�yCh il�r:,s �3; S 'tt r•,,� ttt(Fr':•`.:,k.;`!Y..fv 9:, .., �.,� :,};,, f ' On Monday,May 3rd,1999 an F5 tornado(see NOAA definition The wind turbine suffered some damage to its tail and blades from below),the most severe and destructive class of tornado, tore flying debris.The photo on the left above shows the turbine the approximately 6 miles Nor through Moore,Oklahoma, North of BWC's following day.Debris from the destroyed garage can be seen at the base of the tower.The photo on the right shows the fused disconnect factory This tornado destroyed thousands of homes,did$1.5 billion in total damage,and killed 36 people."I had only been down switch box at the base of the tower.Notice the piece of wood which in my storm shelter for a minute when I heard this awful racket.I has pierced the steel enclosure of the switch box.This indicates that peeked out the door,and the building was gone." Delbert Thornhill, the local wind speed was probably in excess of 220 mph. of Moore,describing the destruction of his garage.His Bergey Excel-S wind turbine,installed in 1985,stands 20 feet away on an Behind the switch you can see one of the homes destroyed by the 80 ft.self-supporting tower tornado.The blades,tail fin,and disconnect switch were replaced and the wind system was put back in service within a week. NOAA Di !�Ation for an F5 Tornado' Category Fs.incredible Damage(281.318 mph);Strong frame houses lifted off foundations aial swept away;automobile sized missiles fly through the air In excess of 100 meters(109 yards);trees debarked;Incredible phenomena will occur. —IMPORTANT NOTE ABOUT FSCALE WINDS:Do not use F-scale winds literally. These wind speed numbers are estimates and have never been scientifically verified. Different wind speeds may cause similar-looking damage from place to Place van from iuilding to building.Without a thorough engineering analysis of tornado damage in any ivent,the actual wind speeds needed to cause that damage are unknown. ®, Click here for more information on Tomadoes Click here for more information on the National Severe Stoma Laborajoa in Norman,Oklahoma 5/20/2003 I Tornado-Tuff Page 3 of 3 s Copyright®2002,Bergey WlndPower Co. PJI rights reserved. Contact: webmaster0berney.com htth://wwxv.hergey.com/Tornado lhtm 5/20/2003 ram% EXHIBIT n Version 1 0 Nov.,2000 BWC XLA Tilt.Tower Installation Manual 9 m(30 ft)TiltTower 13 m(42 ft)Tift.Tower 19 m(64 ft)Tift.Tower 25 m(84 ft)Tift.Tower 32 m(104 ft)Tilt.Tower Bergey Windpower CQ., Inc. 2001 Priestley Ave., Norman,OK 73069 USA Telephone: (405)364-4212 o Fax: (405)364-2078 Emaa salesAbergey.corn WINDPQ�WER web: www.bergey.com Please Help Us Improve This Manual We would be very interested to hear any comments you might have on this new installation manual. We are particularly interested in learning of mis- takes or omissions and subjects that are unclear. Please call, fax, or e-mail and direct your comments to Steve Wilke in Customer Service. Thank you very much for your assistance. Tel: 866-237-4397 (toll-free in U.S.) Tel: 405-364-4212 Fax: 405-364-2078 e-mail: swilke@bergey.com 1 BWC Tilt-up Tower & BWC XLA INSTALLATION MANUAL Table of Contents the guy wires along the tilt-axis will change appre- ciably between the tilted-up and tilted-down posi- 1. Overview ..................... ..... 2 tions. If the anchors are lower than the base the tension in the cable(s) can become excessive. If 2. Safety .. ........... .. .. . ...... 3 the anchors are higher than the base the cable(s) 3 Cautions and Warnings ........ 3 can become too loose to provide proper stability 4. Components ...................... 3 of the tower sections. When installing in sloped 5. Anchors and Base ............... 3 terrain, the Tilt.Tower should always tilt-down in 6. Tower Assembly .... ............ 6 the upslope direction. 7. Initial Tower Raising .......... 10 After assembly of the tower,wind turbine, and 8 Tower Lowering 11 tower wiring on the ground,the tower and turbine 9 XL.1 Wind Turbine .............. 11 are tilted-up to the vertical position using a winch 10. Final Tower raisin 15 (not supplied)or a vehicle. A winch is preferred g because of the greater control they afford. It is 11. Miscellaneous Reference Md- 15 possible to raise the 30 ft. (9 meter)tower and terial ... . ..... .................. turbine without a winch, but it takes 3-4 crew- members to do it safely. The towers are provided with a lever arm, called a gin-pole, which runs from the base to one of the guy anchors. The gin- pole converts the pulling force on the pull-up rope 1. Overview or cable into a lifting force on the turbine and tower. Without the gin-pole it would be virtually The Tilt.Tower is the factory recommended tower impossible to raise the tower. for the Bergey XL.1 tower because it combines cost-effectiveness and ease of installation. Over the long-term the Tilt.Tower will also reduce"total costs of ownership" by making it easier for owners to inspect, provide preventive maintenance (par- ticularly in corrosive environments), and`perform repairs to the XL.1 wind turbine. The Tilt.Tower kit includes all of the components and fasteners required to assemble and ground the tower. The tower can be installed without con- crete work in areas with good soil strength and no rocks (that would impede the screw-in guy-wire anchors). In weak or rocky soils the use of con- crete to fix.the anchors is required. Proper grounding (or"earthing") is an important element in protecting the system from lightning damage. As shown in Figure 1, the tower is guyed in four directions. The tower is guyed at vertical intervals of approximately 20 ft(6 meters). The Tilt.Tower is best installed on level ground, but can be in- Figure 1, 9 m (30 ft) Tilt.Tower stalled on slopes or uneven terrain provided that the base and the anchors on the tilt-axis can be kept fairly level. If this is not done, the tension in 2 2. Safety and Quality Assurance At several points in the manual items of special interest or significant impact are highlighted by The following recommendations should be care- one of the following notices. fully observed as part of any tower raising and lowering, and during the tower siting process. In Way Hazards or unsafe practices that particular, the safety of the crewmembers must be could cause personal injury or death. placed ahead of all other considerations. Some of the following warnings or cautions have been Caution: Hazards or unsafe practices that highlighted in the appropriate section of the man- could cause product damage. ual. 1. DO read and follow the Tower Installation Note: Significant points of interest Manual. 2. DO NOT climb the tower. 3 DO NOT erect the tower within 1 times the 4. Components tower height of electric power lines. The major components for the tower kits are 4 DO NOT erect the tower within 1 times the shown in Figure 2. This figure shows a 25 meter tower height of buildings or roads. (84 ft)tower, which like the 19 m (64 ft.) and 32 m 5 DO NOT permit unnecessary persons on the (104 ft.)towers uses larger diameter and longer tower site while the tower is being raised or tower tubes and has a ginpole that is shorter than lowered. the guy radius. The 9 m (30 ft.), like the one shown on the cover of this manual and in Fig. 1, 6 DO NOT use a tractor or other vehicle to erect and the 13 m (42 ft.)towers use smaller and the tower without exercising extreme caution. shorter tubes and have a ginpole that extends out 7. DO determine the soil type at your site and to the anchor point. install the correct anchoring. 8. DO place tower anchors according to the an- chor manufacturers recommendations. 5. Anchors & Base Plate 9 DO properly ground the towers electrically. Please review the Anchoring Reference section in 10. DO thoroughly understand the tower erection Section 11 before proceeding further. Different procedure before beginning the installation. soil conditions may require different anchoring methods to ensure proper strength. The Tilt.Tower is cost-effective, safe, and conven- Tools Required: ient; but the forces involved in raising and lower- ing are very large. Inadequate attention to proper rigging and procedures can lead to destruction of Hammer the equipment and/or serious injury. DO NOT cut Sledge-hammer corners or get into a hurry. 100 ft. tape measure 2 1/2 ft long x 1" —1 1/2"diameter metal bar or pipe Shovel (if ground is too hard for screw-in an- ' 3. Cautions and Warnings chors) g 9/16"box-end wrench 12"crescent wrench This manual contains important information on the installation of your Tilt.Tower, XL.1 wind turbine, Procedure: and PowerCenter controller. We strongly recom- mend that you read and follow the instructions Step 1: contained in this manual. Mark the ground location for the tower base plate, guy anchors, and the lifting anchor for the gin pole (not required for 30'and 42'towers). The appro.. 3 4 ft.Top Tube XL.1 Wind Turbine Guy Set,80 ft.Level Tower Tube Gu Set,60 ft.Level y et, 0 ft.Le el Guy Se Level Guy Wires ufting a (with swa on Base Tube g eyes) Ba I e Base Tube Tower Tube Ginpole Top Tube (with teeter brackets) Malleable Clips Screw4n Anchor 25 m 84 ft. Tower Figure 2, Major Tower Components priate dimensions and ground layout are shown in Warning: The tower must not be erected Figure 3. Make sure that you have sufficient room Within two (2)times the tower height of for the tower and turbine to tilt down. If you plan electric power lines. This warning is to mount solar modules on the tower we recom- critical. mend that the ginpole be oriented towards South in the Northern Hemisphere and North in the Note: The side guy anchors and the base Southern Hemisphere. If the site is not level, try plate must be on a straight line to insure to position the tower so that it will be lowered in adequate cable tension during raising or the uphill direction. Check the diagonal distance lowering operations. If exact placement between anchor points.to ensure that they are of an anchor point is not possible, it square". should be moved outward from the base rather than inward. Try to keep 4 the side anchors and the base plate at approximately the same elevation a Towards Carrier Pad Step 2: -45 Ded/rees�' Screw in the earth anchors at-45 degrees point- 1 -150 mm(6") ing towards the tower base stake, leaving 4 Ground level inches to 8 inches (10 cm -20 cm)above ground, as shown in Figure 4. When finished the eye at the end of the anchor rod should have its eye ori- ented vertically, as in Fig. 4. A-2 1/2 ft. metal Screw-7nAnchor bar or heavy wall pipe, -- 1 - 1 1/2 inch in diame- ter, will be necessary to-develop the high torque Figure 4, Anchor Angle required to screw the anchors in. The 4'ground rods may be used, but they are awkward because For weak or problematic soils it may be necessary they are too long. The screw anchors for the 9 to use concrete for the anchors or use an alter- and 13 m towers have a 4"helix and are 1.37 m nate anchoring method. These topics are covered (54"),long. The screw anchors for the taller tow- in Section 11, under Anchoring. ers have a 6"helix and are 1.68 m (661 long. Step 3: For most installations the base plate will sit di- ° Tower rectly on the ground. This is actually the preferred Uphill Guy Anchor configuration. A concrete base is only needed when the soil strength is very low, such as sand or %Anchor marsh. Assemble the four piece base plate with the gal- Glry ius vanized bolts supplied with the kit as shown in Figure 5. Install the base plate with its upturned side Goy flanges aligned with the tower lay-down direction. -Anchor- ------------ -__ _Sa Sink the down turned edges into the soil. Pound 1 It Plats I in two 4 ft(1.2 m) copper-clad ground rods Glnpole through holes in the base plate using a sledge- Anchor Distancehammer. Leave—4 inches(10 cm)of rod above � __�-- Glnpae the Base Plate. _ Anchor When using a concrete base for the tower we rec- bownhlll Guy ommend a base that is roughly 60 cm x 60 cm x Anchor.• .._ 30 cm deep (2 ft x 2 ft x 1 ft deep), with several pieces of steel reinforcing bar placed horizontally Layout Dimensions In Feet Layout Dimensions In Meters The Tilt.Tower Base Plate must be secured to the an". °Inca° To— Guy Diagonal Anchor T_ Guy Diagonal Anchor concrete using two 5/8" hex head bolts (not sup- , DI°1-_=,.n� '+o+" -N.Ipltl "'�." DL1.Irc. oHunee plied) or concrete anchor bolts (not supplied) in- 20 ft. IY IL 20.0 IL N.A. om S.Om 0.17 m N.A. 62R 35R 2e.00. N.A. 12m 0.7 15.1. .1 . stalled through the%holes normally used for the 04 R' >s R Us A. 20 a 10 m f0.7 m ts.l m O.tm MR So A, 70.7n. 2Ya 23m 17.2m 21.O. r.om 89. ground rods. Figure 3, Anchor Layout You can either cast hex bolts into the concrete or pour the concrete pad and install anchor bolts af- Turn the screw anchor clockwise so that the auger ter the pad has cured. Drilling the pad for anchor bit bites into the ground. One hint for getting the bolts will generally require the use of a hammer screw anchor started is to press the auger part drill. For cast in bolts, we recommend two 6"long into the ground with your foot while turning. If the galvanized 5/8"diameter bolts with-2'y of the anchors cannot be screwed in due to rocks, it may threaded end sticking up above the concrete. The be necessary to dig holes, insert the anchors and bolts should be centered on the pad and be fill the hole with concrete. spaced 15 X apart. Note the towee tilt alignment direction required In Figure 5. 5 a For non-concrete installations the channel plate Step 1: that faces towards the gin-pole anchor should be Bolt the base tower section to the base plate us- assembled in the extended position, as shown in ing a 1/2"diameter x 5"long bolt and nut through Figure 5. When being bolted to a concrete pad the hole drilled in the flared end of the base sec- the channel plate should be assembled in the re- tion. Use the lower hole in the center of the long tracted position. Securely bolt the Base Plate to base plate, as shown in Figure 5. the concrete pad. Install the ground rods adjacent to the concrete pad. Note: If the power leads are to be carried in- side the tower, as is recommended, Galvanized bolts(6 places) the should be installed as the tower is rods or concrete g holes for ground being assembled. See Section 9 for rod Top View anchors wire size recommendations. 0 0 0 Step 2: Glnpole On a 30 ft(9 m)tower, add three more 2 m (6.5 ft) direction sections. Make sure that the too-most section has Towertilt- three embedded fasteners at its too. Add the 0 0 0 0 do wnion .4MovetCharmhis shorter 1 4 m (4.5 ft)turbine mounting section, dirIn When making sure that the fastener holes are aligned. mounting co Not used on concrete cr Bolt the two upper sections together using the Bolt hole for Bolt hole for three 5/16"bolts provided. Slide on the guy ring tower tube ginpole tube over the top of the tower while the spooled guy Side View wire sets are attached. Do not unspool the guy wires at this stage. There is only one set of guy wires on the 9 m (30 ft)tower. Figure 5, Base Plate Assembly On the 13 m (42 ft)tower, add three 2 m (6 ft) sections to the base section for a total of—8 m (26 ft). Slide on the first guy ring (Labeled 20 ft level)over the top of the fourth tube while the spooled guy wire set are attached. Do not Ln- spool the guy wires at this stage. 6. Tower Assembly Step 3: Slide the guy ring all the way down the tube to the Tools Required: flared connection where the tubes join. Make 3/4" box-end wrench sure that the guy ring"ears'are facing towards '72box-end wrench the base plate. The ring will rest against the 12" crescent wrench flared diameter of the tube. 5/16" nut driver or box-end wrench Electrical tape Make sure that the guy wire labeled "20 ft level lifting" is on the top. There is a white'lifter'label Procedures: on the spool and a blue tag on the lifter eye The procedures are somewhat different for the 9 and 13 meter towers and the taller 19 —32 m tow- Step 4: ers. In the case of a 13 m (42 ft)tower, add two 2 m (6.5 ft) sections. Make sure that the top-most sec- tion has four embedded fasteners at its top. Add 9 m (30 ft) and 13 m (42 ft) Towers: the shorter 1.4 m (4.5 ft)turbine mounting section, making sure that the fastener holes are aligned. These two heights use 89 mm (3.5")tubing that Bolt the top section to the sixth section using the comes in nominal lengths of 2 m (6.5 ft). The three 5/16"bolts provided. taller XL.1 towers (19, 25, & 32 m) use tubing that " is larger in diameter and longer. Slide on the second guy ring (Labeled 40 ft level) over the top tube while the spooled guy wire set is 6 •r attached Do not unspool the guy wires at this Step 3: stage Add two more 3 m (10 ft) sections and slide on the 40 ft level guys. Make sure that the guy ring Slide the guy ring all the way down the tube to the ears",are facing towards the base plate. Slide flared connection where the tubes join. Make the guy ring all the way down the tube to the sure that the guy ring "ears" are facing towards flarediconnection where the tubes join. The ring the base plate. The ring will rest against the will rest against the flared diameter of the tube. flared diameter of the tube. Do not unspool the guy wires at this stage. Make sure that the guy wire labeled "40 ft level Make sure that the guy wire labeled"40 ft level lifting"is on the top There is a white"lifter' label lifting" is on the top. There is a white"lifter" label on the spool and a blue tag on the lifter eye on the spool and a blue tag on the lifter eye. You can now proceed to Step 7. Step 4: On a 19 m (64 ft)tower, add the top-most 3 m (10 19 m (64 ft), 25 m (84 ft), and 32 m (104 ft) section, which has three embedded fasteners ft) Towers: at its top. Add the shorter 1.4 m (4.5 ft)turbine mounting section, making sure that the fastener These three heights use 114 mm (4.5")tubing that holes are aligned. Bolt the top section to the sixth comes in nominal lengths of 3 m (10 ft). They section using the three 5/16"bolts provided. Then also have a gin-pole, which is shorter than the guy slide on the 60 ft level guy ring. radius, requiring a fifth screw-in anchor. On the 25 m and 32 m towers, add two more 3 m Step 1: (10 ft)sections and slide on the 60 ft level guy ring Bolt the base tower section to the base plate us- and wires. ing a 1/2"diameter X 6" long bolt and nut through the hole drilled in the flared end of the base sec- Make sure that the guy ring "ears"are facing to- tion. Use the lower hole in the center of the long wards the base plate. Slide the guy ring all the base plate, as shown in Figure 5. way down the tube to the flared connection where the tubes join. The ring will rest against the flared Note: If the power leads are to be carried in- diameter of the tube. Do not unspool the guy side the tower, as is recommended, wires at this stage. they should be installed as the tower is Make sure that the guy wire labeled"60 ft level being assembled. See Section 9 for lifting" is on the top. There is a white"lifter label wire size recommendations. on the spool and a blue tag on the lifter eye. Step 2: Step 5: Add two 3 m (10 ft) sections to the base section On a 25 m (84 ft)tower, add the top-most 3 m (10 for a total of 9 m (30 ft). Slide on the first guy ring ft) section, which has three embedded fasteners (Labeled 20 ft level)over the top of the third tube at its top. Add the shorter 1.4 m (4.5 ft)turbine while the spooled guy wire set are attached. Do mounting section, making sure that the fastener not unspool the guy wires at this stage. holes are aligned. Bolt the top section to the sixth Slide the guy ring all the way down the tube to the section using the three 5/16" bolts provided. Then flared connection where the tubes join. The ring slide on the 80 ft level guy ring. will rest against the flared diameter of the tube. On the a 32 m (104 ft)tower, add two more 3 m Make sure that the guy ring "ears"are facing to- (10 ft) sections and slide on the 80 ft level guy ring wards the base plate and wires. Make sure that the guy wire labeled "20 ft level Make sure that the guy ring "ears"are facing to- lifting" is on the top. There is a white"lifter label wards the base plate. Slide the guy ring all the on the spool and a blue tag on the lifter eye. way down the tube to the flared connection where the tubes join. The ring will rest against the flared diameter of the tube. Do not unspool the guy wires at this stage. 7 Make sure that the guy wire labeled "80 ft level Caution: Extra care must be taken while rais- lifting" is on the top. There is a white'lifter"label ing the tower if the anchor placement is on the spool and a blue tag on the lifter eye. not perpendicular to the tower, or if the { side anchors are not at the same eleva- Step 6: tion, or if the side anchors and base On a 32 m (104 ft)tower, add the top-most 3 m plate are not in a straight line. Any of (10 ft) section, which has three embedded fasten- these conditions will effect the guy wire ers at its top Add the shorter 1.4 m (4.5 ft)tur- tension as the tower is raised. Tension bine mounting section, making sure that the fas- must be adjusted periodically as the tener holes are aligned. Bolt the top section to the tower is raised. sixth section using the three 5/16" bolts provided. Then slide on the 100 ft level guy ring. Step 9: Slide three wire rope malleable clips (supplied in Make sure that the guy ring "ears"are facing to- the guy set box) onto each guy wire end. Thread wards the base plate. Slide the guy ring all the the guy wire end through the anchor rod eye, way down the tube to the flared connection where double back and slide through the first wire rope the tubes join. The ring will rest against the flared malleable clip. diameter of the tube Do not unspool the guy wires at this stage The guy wires are wrapped around the anchor eye as shown on the anchor detail in Figure 6. Make sure that the guy wire labeled "100 ft level Place the wire rope clips on the wire so that the lifting" is on the top. There is a white"lifter"label forged, grooved part cradles the wire coming from on the spool and a blue tag on the liftereye. the tower(the"tension side") and the"U-bolt" part clamps down on the end-most section of the wire. Step 7: Leave a little slack in the guy wire. Snug up the Roll out the side guy wires to the side anchors. wire rope clip nuts using a 5/16" nut driver, but not Use a screwdriver or small diameter rod through too tight-it may be necessary to adjust them du the center of the wire spool as an"axle". Let the ing the tilt-up procedure. Let the other two clips wire unwind as you walk out to the anchor point. remain loose until the tower has been erected and y leveled. Note: On the 19 m and taller towers, the guy wires marked for"Lifting"must be on the upper side of the horizontal tower Malleable Clip sections. The guy wires marked"Lift- p ing" have an eye swaged to the cable. This eye is clipped to the top of the gin pole. These guy wires serve as the lift- ing wires until the tower.is fully erected. Note: Guy wires must be rolled out to the an- chors, not let out from a coil held in the Note: 6" "Tripleye" hand or from the side of the spool. anchor for 19-32 m These latter two methods will allow the towers shown wire to become severely twisted and stressed, making it very difficult to han- dle. Step 8: Figure 6, Guy Wire Attachment When the guy wires are rolled out to all the an- chors, check to insure that the tower forms a right Step 10: angle with the line joining the side anchors and Referring to Figure 5, attach the base section of. the base plate. Check also that the front and rear the gin pole to the base plate"with a '9 x 6'bolt. anchors and the lifting anchor are in line with the The ginpole is assembled in the same direction as tower. the tower itself, with the ginpole resting on top of 8 the tower sections. Be sure to install the gin pole free ends of the remaining guy wires will'be at- safety wire as shown in Figure 7. tached to the forward anchor after the tower is erected.- Keep the wires well organized so this will On the 9 and 13 m (30' and 42')towers, slide a 2 be easy to do. m (6.5 ft) section and then the 2 m (6.5 ft)top sec- tion onto the base section. The tower uses a 6 m Step 12: (20 ft) gin-pole, made up of three 2 m sections. Attach the two yellow polypropylene ropes to the top of the gin pole. Run one of the ropes to each . On the 19, 25 and 32 m (64', 84', and 104')tow- of the side anchors. The ropes prevent the gin ers, slide a 10 ft section and then the 10 ft top pole from falling sideways when vertical and cen- section onto the base section. The tower uses a — ter it as the tower is being raised. 30 ft gin pole, made up of three 10 ft sections. Step 13: Attach the cable from the lifting device to the gin 1'4"NASPACKETBOIT pole tie top bracket with a shackle from the hard- SWAGED LOOP ware kit. Electric or hand winches may be used. The pull-up forces (including the XL.1 turbine) and of„PaETtETCPACKETs the pull-up cable lengths are given below: SAFETY tNRE o SWAnEO LOOP Pull-up Pull-up Cable / 6MPME Height, Height, Force,kgs Travel, LSHACXLF s snip meters feet (Ibs) meters (ft) IIWS ATTACHMENT ' BASE PLATE 9 30 160 (350) 9 (29) SAFETY NAAP ASS MB V "Im o"`"'O °°" BOLT _ s " 13 42 250 (550) 9 (29) i.Anor0l On Doll as tap of W t S•wn.a".l,.m"Vdo*hw+d'a+ -19 64 340 (750) 13.1 (43) 00.,Pm EN RM. loop b,*"f.rw Figure 7, Ginpole Safety Wire 25 84 520 (1,150) 13.1 (43) Assembly 32 104 700 (1,550) 13.1 (43) Make sure that the bracket bolt in the end section These loads are static loads. Bouncing or shock of the gin pole is aligned as shown in Figure 7. loading can cause higher momentary loads. We Bolt the tie top brackets to the end section. Attach recommend using at least 3/16"steel wire rope for the snap links to the tie top bracket with shackles. the lifting. We also recommend a 2:1 pulley block A snap link is a heavy galvanized steel or arrangement to reduce the line tension for the 25 stainless steel loop with a spring-loaded gate or and 32 meter towers. A 2:1 pulley block will cut opening side bar. A shackle is a heavy gape- the pull-up force in half. The pulley block is at- nized steel U-shaped ring with a heavy pin that tached to the ginpole shackle or snap-link. Please when assembled forms a D-shaped connector. remember that using a 2:1 pulley will double the Be sure that the snap link opens down and away pull-up cable travel to 27 m (86 ft). from the base plate. This will allow the lifting guy wires to be clipped and unclipped in the correct Way If a winch is used we strongly order. recommend that a worm-gear type be Step 11: used and that a spur-gear type be Roll out each level of the lifting guy wires and at- avoided. A worm-gear winch is inher- ently self-locking and cannot free-spool tach each of the swaged-on lifting eyes to the like aspur-gear type winch. snap links shackled to the bracket at the end of the gin pole. The top guy wire attaches to the . Bergey Windpower offers manual and electric forward snap link. The lower guy(s)are clipped to winch kits that are rigged and ready to go. Con- the second,snap link, the lowest guy wire first. tact your dealer or Bergey Windpower for informa- Make sure that the guy wires are not twisted. The tion and pricing. 9 • _a that the lifting procedure is satisfactory, and will Caution: If using a tractor or truck, extreme allow the back guy wires to be attached and ad- care must be exercised. Use a pulley justed. The sequence is shown in Figure 8. block at the lifting anchor. Never attach a cable from a truck/tractor directly to Tools Required: the gin pole end. Proceed slowly and 5/16" nut drier smoothly. Procedure: Step 14: Walk the gin pole toward the vertical position Step 1: while taking in the slack with the lifting device. Start lifting the tower 100 to 200 at a time. Monitor When the gin pole is nearly vertical, all the lifting the side guy wires and the yellow gin pole ropes wires should be tight. If using a drum winch, carefully. They may become either loose or tight guide the cable onto the drum with a gloved hand if the site and the anchor points are not perfectly so that it is distributed evenly across the surface level. Although there must be some tension in the of the drum. wires at all times to provide side support for the tower, there must always be visible slack in the Step 15: guy wires. If no slack is visible. the tension is too Use some tape to secure the tower electrical wir- great' Over-tension may cause failure of the ing at the top end of the tower so that it will not wires, the anchors, or the tower. For further in- slide down the tower when the tower is raised. formation, refer to the section on SLACK at the end of the instructions. Step 16: Lift the tower 1.2 m to 1.8 m (4 ft to 8 ft)above the ground to check the operation of the lifting device and the security of the lifting and guy cables. The side guy wires must be tended to prevent the r-- tower from bowing or falling off to one side or the other. In addition to checking the security and adjustment of the guy wires, check the lifting an- chor for movement. If the gin pole anchor will not hold, the soil is too poor for this type of anchor or the depth of the anchor was insufficient. The maximum lifting force is experienced when the tower is first lifted from the ground. Warning: Do not work under or near the Failure to Install the Ginpole tower while it is being lifted. Do not Safety Wire can lead to ginpole work under or near the tower when it is separation 1 off the ground, unless it is resting on blocks or is fully guyed. Figure 8, Tower Tilt-up Sequence Step 17: Lower the tower and make any necessary adjust- Adjust the cable tension as required using the .ments to the guy wires or anchors. Roll out the wire rope clips. Work slowly. Fast uneven guy wires that will be attached to the back anchor movements tend to make the tower swing or wa- ver. Try to work smoothly and insure that those people tending the cables are able to follow along 7. Initial Tower Raising_ with the tower raising process. Caution: Be sure that communication be- At this stage, an initial tower raising without the tween all members of the lifting team is wind turbine in place is recommended. It will in- clear and concise. sure that all the cables and anchors are secure, 10 " 1 Note: The guy wires can be pulled in by one person when the winch is stopped. WARNING: At no time during the lowering Brute force is not required. operation should personnel,vehicles, or other equipment be located where they Step 2: could be hit by the tower or the side guy Continue lifting and adjusting until the tower is 450 wires. Determine the boundaries of the to 600 toward the vertical. Attach the set of back potentially dangerous area and keep it guy wires to the back anchor. The back wires - clear. should be walked over to the side anchors to get an approximate length prior to attachment. Step 2: Tension must be applied to the back guy wires to Step 3: pull the tower away from the raising device as it As the tower approaches vertical, it is important to begins letting out cable. In order to clear the dan- maintain tension on the back guy wire set. This ger area, it will be necessary to apply the tension should be done by standing to one side of the an- through ropes attached to the guy wires. The chor, not directly under the tower, pulling on ropes ropes should be attached above the back anchor attached to the guy wires. All back guy wires and should be long enough to insure that person- should be held, allowing the raising device to pull nel are located well beyond the point where the against the tension until the tower is vertical or the top of the tower will touch the ground when low- gin pole is on the ground. ered. Pull as required to keep tension on the guy wires. - Note: The tower will lift easily at this point. Very little force is required to,lift the As the tower is lowered and reaches an angle be- tower into its final position. tween 600 and 450, it will no longer be necessary to maintain tension on the guy wires opposite the Step 4: winch. Check the side guy wire tension for a moderate degree of slack, corresponding to a wire pull of Step 3: about 23 kilograms (50 pounds). Check the secu- Set the tower down on blocks placed about every rity of the wire rope clips. 6 m (20 ft)along the tower. Maintaining tension on the lifting cables with the Step 4: raising device, use a carpenter's level on the base Ground the tower base by installing the brass tube to adjust the guy wires until the base tube is "acorn nut"to one of the ground rods and attach- vertical. Insure that the tower is straight by sight- ing one end of the 1/8"bare copper grounding ing up the tower while the final guy adjustments wire. Attach the other end of the grounding wire, are being made. using a small loop, to the ,tower pivot bolt. For this initial lift, it will not be necessary to trans- fer the lifting guy wires from the gin pole to the forward anchor. 9. Installing the XL.1 Wind Tur- bine 8. Lowering the Tower XLA Wind Turbine Components The procedure is just the reverse of raising the tower, although certain precautions must be The major components of the XL.1 wind turbine taken. are shown in Figure 9. Installing the turbine re- quires connecting it to electrical wiring to the Step 1: PowerCenter controller and then assembling the If the raising process has indicated that the ten- turbine.at the top end of the tower. sion of the side guy wires will vary as the tower is . being lowered, it is important that the side guy wires be tended to avoid excessive tightening or slackening. - 11 the tower then a watertight junction box should be Powerhead Alternator installed for the connections. Tail Fin The recommended wire sizes for the 24 VDC XLA ;.. Nacelle wind turbine are shown in Table 2. The listed dis- Blades tances include the height of the tower. Maximum Current: 60 amps 1 r Spinner Tail Boom/ Towerl Caution: Installing wire sizes larger than Mount those recommended will increase the maximum current produced by the tur- bine. Table 2: Recommended Wire Sizes for the XLA Figure 9, Major Components of the XLA Distance Size (U.S.) Size (metric) Wiring 23 m (75 ft) #8 AWG 3.35 mm2 The basic electrical schematic for the B,WC XL.1 46 m (150 ft) #6 AWG 4:25 mm2 battery charging system is shown in Figure 10. 69 m (225 ft) #4 AWG 5 mm2 91 m (300 ft) #4 AWG 5 mm2 Alternator DC Wire Run 114 m (375 ft) #2 AWG 7.1 mm2 r. 130 m (450 ft) #2 AWG 7.1 mm2 Rectifier PowerCenter (on turbine) Note: These wire sizes have been engineered to provide op- timum rotor loading for the BWC XL.1/24 wind turbine. Devia- tion from these recommendations can result In decreased performance from your machine and/or unnecessary addim Figure 10, XLA Wiring SchematlC tional wire-run costs. The use of a wire gage one size larger than the recommended size is acceptable and is recom- mended if aluminum wire is used. The wind turbine alternator produces a 3-phase AC, which.is rectified into DC up in the nacelle. A Turbine Installation two (2)-conductor wire is needed between the wind turbine and the PowerCenter controller. The The fasteners on the XL.1 are all metric. PowerCenter has a DC circuit breaker,for the wind turbine input, so no fused-disconnect switch is Tools Required: required at the base of the tower(as is recom- 17 mm box end wrench mended for the other BWC wind turbines). 17 mm socket and — 12" ratchet drive 8 mm socket or wrench In some cases it will be possible to provide direct. pliers point-to-point wiring between the XLA wind tur- crimpers for wiring terminals (U-shaped bine and the PowerCenter. For this purpose we crimp preferred over straight crimp) recommend 2-conductor VNTC (Vinyl Nylon Tray thread locking compound (like Locktite 242) Cable), which is suitable for outdoor and,direct- tape measure, 12 ft. burial applications. For rocky soils we recom- mend that the underground wire run be installed in conduit. If a wiring junction is made at the base of 12 f' Procedure: Step 3: Mount the wind turbine tower adapter to the top of Step 1: the tower using the six M10 x 1.5 bolts and six Place the powerhead of the wind turbine near the lock washers. We strongly recommend applying top end of the tower. Loctite 242 (Thread Locking Compound)to the threads prior to installation to reduce the likelihood The tower wiring is connected to the XL.1 wind of loosening due to vibration. We recommend turbine at the slip-ring using two small screws and using a torque wrench to achieve the proper fas- ring terminals crimped to the two conductors. Cut tener torque on the tower mounting bolts. The the outer insulation on the wire back about 60 mm recommended toque is 47 N.m (35 ft-lbs). (2.5 in). Strip the insulation off the outer 12 mm (1/2 in) of each conductor and crimp on the ap- On the 19-32 m towers the top section has special propriate ring terminals (several sizes are pro- fasteners installed to provide proper fit-up to the vided). Attach the two power conductors to the XL.1 tower mount. Bolt right through these fas- slip-ring assembly with the screws provided. The teners. polarity of the connections is marked. If your con- ductors are color-coded we recommend making Step 4: note of the colors connected to positive and nega- Complete the wiring to the PowerCenter before tive leads. adding the blades. This is recommended so that you can test the DC polarity of the wiring by spin- The slip ring assembly is not designed to support ning the alternator by hand. It is very important the weight of the down-tower wire. A strain reliev- that the polarity [positive (+) and negative ()] is ing installation is required, as shown in Figure 11. correct when the turbine is connected to the Pow- Use the two nylon cable ties provided to secure erCenter. The best way to ensure this is to cam- the tower wiring to the tower adapter casting. Af- plete the wiring and then test the polarity with,a ter completing the connections, pull on the tower Volt-Ohm-Meter. Turning the alternator by hand wire to make sure that it is secure before mount- will provide enough voltage to make this check. ing the wind turbine on the tower. Carefully mark the positive and negative electrical leads for later reference. Step 5: \; Turn the XL.1 powerhead upward so that the NNal- `•\ �r temator is facing up. Attach the blades as shown Nylon �i- - in Figure 12 using the M10 hardware provided. Cable We recommend bolting one blade up solidly and Ties ` r leaving the other two somewhat loose white you Turbine check the tip-to-tip blade distance. We recom- Mounting Bolts ; '` -'j' ��, i mend checking, and adjusting as necessary, the blade tip spacing to ensure that the blade tips are equally spaced. This step will help make the wind •:, �i �..-� Power Cables turbine as smooth running as possible,which will J} � maximize the operating life of the bearings and educe vibration related noise. The blade tip-to-tip distances should not differ by more than 12 mm (1/2")for smooth operation. We recommend using a torque wrench to achieve the proper fastener torque on the blade nuts. The Figure 11, Turbine Mounting recommended toque is 47 N.m (35 ft4bs). Loctite is not necessary on the blade fasteners because Step 2: the nylon locking nuts provide adequate locking. Raise the tower about 1 meter(3 ft) off the ground to provide room to assemble the XL.1 turbine. We recommend fashioning a temporary support stand to hold the tower up during turbine assembly. 13 _ Figure 13. We recommend applying Loctite to the \` bolt threads prior to.assembly. Step 8: Place the tail boom on the rear of the turbine \ powerhead and insert the 12 mm (1/2')tail pivot pin from the top. If the parts are aligned properly the pin should insert easily. Do not use a hammer to pound the pin in place, as this may cause scor- Spinner ing of the bronze bushings. Secure the tail pivot Fasteners pin with two cotter pins, as shown in Figure 14. Blade Nuts& Failure to properly install and secure both cotter 4 Washers pins will lead to loss of the tail boom. o n e Longerbolt _ - goes here Blade Bolts Tail Pivot Pin '0 � Figure 12, Blade and Spinner Fasteners Cotter Cotter Pin Step 6: Pin 0 Attach the spinner(nose cone) using the three M5 .bolts and lock washers provided, as shown in Fig- ure 12. We recommend applying Loctite to the bolt threads prior to assembly. Figure 14, Tail Boom Attachment Step 9: Check the XL.1 wind turbine carefully to make sure that the installation is complete. We recom- mend the following checklist: f ❑ Blade fasteners are secure and prop- Tail Fin Fasteners erly torqued ❑ Blade tips are evenly spaced ❑ Spinner is secure ❑ Tail fin is secure Figure 13,Tail Fin Attachment ❑ Tail pivot pin is locked in place with both cotter pins. Step 7: ❑ Tower adapter bolts are secure Bolt the tail fin to the tail boom using the eight M5 ❑ Wiring polarity is tested and marked bolts and lock-washers provided, as shown in 14 10. Final Tower Raisinq Step 5: Pull all guy wires tight by hand with approximately Tools Required: 45 kg (100 Ibs) pounds tension. Tighten the sec- 5/16"nut driver(several) and and third wire rope clips on each guy wire. There will be a small amount of visible slack in all Procedure: guy wires. This is normal. Step 6: Step 1: Check the guy wires in 2 or 3 weeks and tighten Short-circuit the XL.1'altemator by twisting or bolt- as required. Depending on the soil type, it may ing the output wires together. This will keep the require one or more checks and adjustments be- wind turbine from spinning during the raising of fore the tower and anchors have fully settled. the tower. If the PowerCenter connections have already been made this can be easily done by Installation instructions for the PowerCenter con- moving the positive lead over to the negative ter- troller are provided in the XL.1 Owners Manual. minal: We recommend switching the turbine cir- cuit breaker(left side of enclosure)to the OFF position to avoid sparking during the reconnection procedure. 11. Misc. Reference Material Step 2: Follow Steps 1 through 3 of the Initial Tower Raising instructions in Section 7. Anchoring Step 3: For most installation sites the 4"diameter(9 & 13 Transfer the lifting guy wires one at a time from m tower)or 6"diameter screw anchors supplied the gin pole to the forward anchor, as shown in with the Tilt.Tower kits will be perfectly adequate. Figure 15. Secure each wire with wire rope clips, In some cases the soil will either be too weak for being sure to maintain tension on each cable as it proper strength or too"hard"for screwing the an- . is transferred. Start with the top level and work chors in. In these cases, a subsurface concrete down. pad can usually be substituted. In the case of hard rock, however, special rock anchors may be necessary. This reference section is designed to provide you with considerations and 1 & recommendations that will ensure that you install A }� , adequate anchors. The installation of guy wire anchors is a critical element in the installation of the tower. The an- _. choring system must be able to withstand, without s,X" r� ��� �E„ -appreciable creep, the steady and vibratory loads .101 of the guy wires through all weather conditions for the life of the installation. Site conditions will dic- tate the type of anchoring system used. Soil type, Figure 15, Guy Wire Transfer Sequence water level, freeze depth, and weather variations all'have an effect the holding capacity of the an- Step 4: chors. Again, use a carpenter's level on the base tube to check that the tower is vertical in all directions. Soil Types & Conditions Make a final adjustment of all guys to insure,that the tower is straight. On the taller towers this may Most anchoring systems are designed to work in a take some time due to the number of wires in- limited range of soil conditions. To choose the volved. proper anchoring system, it must be possible to identify these various soils. The accompanying Table 2 shows a system of soil classification de- 15 veloped by the A. B. Chance Company on the ommend using the services of a local contractor basis of the mechanical properties of the soil. with expertise in artic/cold climate anchoring. Table 2: Soil Classifications Anchor Rods Common Soil-Type Geological Soil All the anchoring systems described in the follow- Class Description Classification ing sections use a galvanized steel rod to connect o Sound hard rock,un- Granite,Basalt,Mas- the guy wire to the bearing surface of the anchor. weathered sive Limestone The rod ends form an"eye",which provides an Very dense and/or ce- Caliche,(Nitrate- attachment point for the guy wires. 1 mented sands;coarse bearing graveltrock) gravel and cobbles, The anchor rods should be installed at an angle Dense fine sand;very Basal till;boulder clay; that will minimize the bending loads acting on 2 hard silts and clays(may caliche;weathered them. The angle for the BWC XLA towers should be preloaded) laminated rock be approximately 45 degrees, with the eye of the Dense clays,sands and Glacial till;weathered anchor rod toward the tower. 3 gravel;hard silts and shales,schist,gneiss, clays and sandstone ANCHOR TYPES &THEIR INSTALLATION ATION Medium dense sandy Glacial till;hardpan; 4 gravel;very stiff to hard marls Three types of anchoring systems may be used to silts and clays accommodate various soil types: screw-in an- Medium dense course Saprolites,residual chors, sub-surface concrete pads, and expanding 5 sand and sandy gravels; silts or bonded rock anchors. stiff to very stiff silts and clays Screw Anchors Loose to medium dense Dense hydraulic fill; 8 fine to course sand;firm compacted fill;resid- In most areas of the country, power-installed to stiff clays and silts ual soils screw anchors have become the standard anchor- Loose fine sand;Alluvium; Flood plain soils;lake ing system used by the utilities. Screw anchors 7 loess,soft-firm clays; clays;adobe;gumbo; are furnished as standard equipment with the varied clays:fill fill BWC XLA towers. They are intended to be in- 8 Peat,organic silts;inun- Miscellaneous fill, stalled manually with a stout bar through the eye dated silts,fly ash swamp marsh or with a hand-held electric drive. The screw an- used by permission of A.B. fiance Co. chors included with the tower are suitable for in- stallation in Soil Classes 3-5, and in some Class The presence of water reduces the holding 6. If there is any doubt about the quality of the strength of the anchors. Anchor creep can be a soil, consider other anchoring options or consult problem in soils with large variations in moisture the factory. content. If this condition can occur, it is best to ensure that the bearing surface of the anchor be Concrete Anchor placed below the level of periodic surface satura- tion. A second option is to dig a hole about 0.7 m (2.5 ft) square to a depth of at least 0.9 meter(3 ft). If an anchor is located above the depth to which Place the anchor as shown in Figure 16 and fill the ground freezes, it may experience a phe- the bottom of the hole with concrete to a depth of nomenon known as "freeze-throw"or"jacking". at least 0.3 meters(1 ft), covering the helix and This is the tendency of buried objects to be part of the rod. Since the anchor rods for the 19, pushed toward the surface by the freeze-thaw 25, and 32 m towers are longer, the hole depth cycles. To avoid this problem, the bearing surface will need to be greater(as shown). Also, you of the anchors must be placed below the level to should move the centerline of the hole you will dig which the ground freezes. In areas of permafrost, back— 1".m (40")away from the center of the the anchors should be below the permafrost line. tower to account for angle of the anchor rod. Provisions should be made to prevent solar en- ergy from being transmitted down the rod. If you Reinforcing rods should be incorporated in the must anchor within the permafrost zone we rec- concrete so as to provide adequate strength and load distribution in the pad. The backfilled earth 16 should be tamped vigorously as it is returned to Guy Wires the hole. Guy Wire Slack Q Towards Center Pad There must be visible slack in all guy wires during / I all phases of tower installation. It is possible to -45 Degrees L have too much slack or too little slack. The follow- ing discussion is aimed at defining these condi- Ground level tions. 0.91 m(36•) for 9 d 13 m screw-in Anchor Unless the anchors are placed precisely in their Towers 1 14 m(45•) correct locations and the site is perfectly level, for 19,25.6 32 m Towers r 1t some guy wires will tighten and some will loosen 300m as the tower is raised or lowered. For this reason, (12•) i , all guy wires must be watched and adjusted as �--750mm(3(•)—� needed throughout the tower raising or lowering process. Top View 750mm(3(0•) i< ; . ). ; When a guy wire loses its slack and becomes tight, there is no easy or obvious way to tell how w' much tension there is in the wire. A wire that be- comes tight can quickly apply a very large force ar`• on both the anchor and the tower to which it is attached. If the tower lifting or lowering process is Figure 16, Concrete Anchors continued, the force may increase to the point at which the tower will buckle, causing it to fall and endanger people, vehicles, or equipment nearby. Other anchor rod configurations may be used with a concrete pad, but the size and depth of the pad When the tower has been assembled and is first must be at least as large and as deep as shown. lifted slightly off the ground to test the winch an- The anchor rod and its attachment to the foot that chor, the lifting wires running from the top of the is to be imbedded in the pad must have at least gin pole to the tower should be studied. They will the strength of the anchor supplied with the tower all have a certain amount of droop or slack. kit. Studying the tower's top lifting wire will give all members of the lifting crew a good idea of slack. Rock Anchors Make sure that the side guy wires have noticeably more slack than this reference wire. They should Expanding rock anchors or'bonded rock anchors not, however, appear sloppy A droop greater are the best choice for Class 0 and Class 1 soil. than three or four feet should not be allowed to Rock drilling is hard and tedious work. It requires develop during the raising/lowering procedure. special equipment, including a compressor and air drill. When needed, rock anchors should be in- The tower should have no more than a gentle stalled by, or with the advice and assistance, of a bend from base to top. If the bow becomes more local contractor familiar with this type of anchor. than about one foot, the side guy wires or the lift- In all cases, the recommendations of the anchor ing wires should be adjusted before proceeding manufacturer should be followed. Bergey Wind- further. power can also provide advice on rock anchoring. This sequence of observing, communicating ob- Customer-Supplied Anchor Rods servations, issuing commands to guy tenders, adjusting guys, and retightening wire rope clips The screw anchors provide a large radius for each must be well understood by all members of the of the guy wires as it is attached to the anchor team before lifting or lowering starts. It is a con- eye. This is an important part of the installation in tinuing,process throughout the lifting/lowering sL- order to avoid sharp bends in the cables. Any quences. Particular care should be taken at sites alternative anchor rods should incorporate similar where guy wires might catch on tree limbs, roots, provisions. rocks, or other obstructions. 17 5. DO NOT permit unauthorized persons on A guy wire will have about 23 kilograms(50 the tower site while the tower is being pounds) of tension when the tower is properly raised or lowered. erected. This amount of tension is a comfortable but hearty pull on the wire for an average crew 6. DO NOT use a tractor or truck to erect the member. The uppermost guy wire will have one tower without exercising extreme caution.* foot to two feet of droop with 23 kilograms(50 pounds) of tension. Letting out just six inches of 7. DO determine the soil type at your site the top guy wire will add approximately two feet of and install the correct anchors. droop to the wire and will cause the tower to move over a few inches at the attachment point. 8. DO place tower anchors according to the anchor manufacturer's recommendations. Tower Lift Crew 9. DO properly ground the tower electrically. The following is a suggested guide to forming an 10. DO thoroughly understand the tower erec- efficient and safe crew to erect a BWC XL.1 tion procedure before beginning the tower installation. Four members: YOU MUST BECOME FAMILIAR with all compo- nents of the tower, including hardware,and how 1. One member.to operate the winch and they function, before attempting to install the serve as the key person or leader. tower. Tall guyed towers can be dangerous and you or members of your crew could be injured or 2. Two people to attend to and adjust each killed. side guy anchor. These individuals must be familiar with taking in and letting out guy wires. 3. One person free to assist in holding or pulling guy wires as required. This per- son should also continuously observe the guy wires and the entire lifting operation for any unusual or dangerous situations. Warnings The following warnings should be carefully ob- served as part of any tower siting and raising or lowering operation. Some of the following war- ings or cautions have been highlighted in the ap- propriate section of this manual. 1. Read and follow the TOWER INSTALLA- TION MANUAL 2. DO NOT climb the tower. 3. DO NOT erect the tower within 1 times the tower height of electric power lines. 4. DO NOT erect the tower within 1 times the tower height of buildings or roads. 18 EXHIBIT e�, F ti 'A t • 4 f f� .ti. R. Win• j .tA�A � � ,•� 7 •�• ��1► c - - _. -",_,�. t r �., f,: I ... �' ,. ' �,' � �` � � �.; .. ,, .� „yam- .i. - _. • r '� >, Mr '�. r',�1 +.. a r+ x. � �.i� _ �`Ks�(. Z � } �,a,. -r C/ 1 �.{�a PATRICIA C. MOORE f��IQJN a_V0 51020 Main Road "JJ Southold,New York 11971 Tel:(631)765-4330 Fax:(631)765-4643 April 22 , 2003 ®GM -Southold Town Zoning Board of Appeals 11''11G Lydia Tortora, Chairwoman APR P.O. Box 1179 Southold, NY 11971ZONING B RE: Appeal No. 5186 A 51 Madeline Droege Wind Turbine Dear Chairwoman and Board members : In connection with the above referenced matter and the questions raised at the hearing on April 17, 2003 , enclosed please find an aerial photograph of a wind turbine on property having Suffolk County Tax Map #1000-019 . 00-02. 00-010 . 001 . Very my yours, P tricia C. Moore PCM/mm Enclosure c: Daniel C. Ross, Esq. A @ g r ,w , , F ?e , r - � o e � . r } 44 v._ t� y ® ® 'C" i > Pwindin ND FARMLAND PRESERVATION NEWS. Two RoADs DivERGED. . . .E,r':�J�y�:ti„°'1•x+s*'<,,. :,x '.s<, a;,e.:';i.d'x. �. «^ y;sn`�°'�„"�j?a�, F^a�a's�"�'Oa��-Zr' �'IP'�?F `:j, p�'. I:`lRL'« :...•�._. 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'U Oush for flll'IdS dedi- ^� At 'Work )SO of preserving farm- 1 ,..,.,u..; 1 .' on, we have gone to rf :;Eor Lon Island n to fight for our fair ontinue to do so. The y nity albeit concerned .f open space, has done financial resources are - County and our East environmental contin- , . or Federal funds years c tcl not be arguing for a inner of upzoning. The tiling. There are some Ible programs in place. Imunity,which includes w 1here i'' iow, Irking wind- lists and landowners .-,mill:dotting{the 1_andscape'in- tther to secure tens of ! �' ed at maintaining the ;YCalverton. `Ifs qu>te a sight hold and Riverhead, j ' 4� -actually. It's slee cl-quiet and yone wins. ip =, ,', •' t unobtrusiv° "'as i sits'.'among- `tfie growing s Sang Lee '5; ," Farms The wind turbine is the first of five to be r erected by LIPA on farm sites in Suffolk County with the cooperation of the Long Island Farm Bureau. Each windmill can generate100,000 kilowatt-hours of electricity annually That's enough to power 12 average sized homes on Long Island. The primary purpose of the turbines is to demonstrate how the wind can be harnessed on Long Island to generate electricity The Zeh Farm behind the Windy Acres Farm Stand on Route 25 in Calverton was chosen as the first location for LIPA's land-based wind generators. All sites were reviewed for favor- able wind characteristics,acceptable distances from residential areas and proximity to LIPAs distribution'system.Approximately 50 farmers !sons And with excel- responded to a letter of inquiry from LIPA and ;, more sunshine than UFB. All were interested in becoming potential i York State, abundant participants in an energy initiative to demon- less to wholesale and strate the practicality of using wind turbines to ! surprising that Long generate electricity LIPA and LIFB's goal is to ;t important agricultur- show the ability of using agricultural land as a State. However,it does prime location for windmills. The turbines have to learn that Suffolk very little impact on the agricultural operation !ailing county in whole- and can provide a secondary financial benefit to Ira] products In 1992, the landowner This can all be accomplished :ed 49th in the state for without diminishing the land's primary use in was ranked lst in mar- agriculture. Farm fields and windmills are a million of agricultural natural combination On Saturday, August 31, 2002 Governor rent crops grown,Long George E. Pataki in concert with LIPA and LIFB an agricultural diversi- held a press conference at the Zeh Farm to for- in the state can match. mally dedicate and celebrate LIPAs very first ent has always been to land based,energy producingwfndmill.'This is an Of quLlity products in exciting step forward for the development of e and Potatoes, Fruits, wind power as an alternative energy technology >ultry and Livestock, on Long Island,"Governor Pataki said."Working ui Fishing e in partnership with Long Island Farm Bureau,LIPA is demonstrating how innovative thinking can bring new and environmentally sound solutions Ia g1l I a to help address New York's energy needs." a 10 V" /mot y. V PATRICIA C. MOORE Attorney at Law Pf 51020 Main Road Southold,New York 11971 M) P Tel: (631) 765-4330 Fax: (631) 765-4643 � Margaret Rutkowski Secretary April 17, 2003 Southold Town Zoning Board of Appeals Lydia Tortora, Chairwoman Southold Town Hall 53095 Main Road Southold, NY 11971 Re : Appeal No. 5186 Madeline Droege Wind turbine Dear Chairwoman and Board members : I represent Mrs . Mallis who owns a 10 acre parcel adjacent to the subject application. Her waterfront house is located directly adjacent to the Droege house. i The proposed wind turbine is not a "customary accessory use" , it is not customarily incidental to a highly residential neighborhood of single family residences on one acre parcels . (See Presner v Leslie 165 NYS2d 488, 3 NY 2d 384, attached hereto as Exhibit "A" ) The applicant can not establish that a wind turbine 64 feet in height is an accessory use customarily incidental to a residence . The proposed wind turbine is located only 35 feet from the front property line, less than 20 feet to the side yard, placed on top of her sanitary system. The Guide Wires are not shown. A structure 64 feet in height will require a "fall down" radius, similar to the radius required for cell tours . Given the proximity to the Long Island Sound, the structure will require extensive anchoring to prevent damage from North East storms . A 64 ' radius extends beyond the applicant' s property. The only other wind turbine appears on a large farm 1` in Orient . No permit was obtained for that wind turbine, therefore we do not know how the Building Inspector would address that application. Certainly, a wind turbine may be customary and accessory to the particular operations , on a farm but not a single family residence on one acre. The Petty' s Bight subdivision was developed with Covenants & Restrictions, which have never been terminated (attached hereto as Exhibit "B" ) The Covenants & Restrictions restrict the placement of a wind turbine or any other structure on a property (See paragraph #4 , 6, 10) . The height of structures in the subdivision are regulated by the Covenants & Restrictions, a residence is to be no more than 2% stories and fences 4 ' in height . The proposed wind turbine, as "other structures" is - specifically restricted. The Zoning Board should consider the prohibition of a wind turbine in the Covenants & •= - Restrictions for the purpose of compliance with the character of the neighborhood. Finally, the use is not permitted as it is a commercial use on the residentially zoned parcel . The wind turbine generates electricity which is sold to the public utility. By example, Equilese Corp. V. Indemnity Insurance Company of North America involved an investor who got "scammed" to invest in "development and operation of electricity producing wind turbine generators" (attached hereto as Exhibit "C" ) . The production of electric energy has become a business wherein the electric companies are obligated to purchase any excess electricity. In " conclusion, the use is not - customary and accessory to the residence on a Petty' s Bight subdivision lot . (;a ry tLaC urs, trici : Moore Court of Appeals of New York. In the Matter of Oscar PRESNELL, Appellant, V. Jean LESLIE, Chairman of the Board of Appeals et al., constituting the Board of Appeals of the Village of Westbury, Respondents. July 3, 1957. Proceeding.on petition under the Civil Practice Act, s 1283 et seq., for an order annulling a determination of the Board of Appeals of Village of Westbury, denying petitioner a permit for construction of a radio tower on petitioner's premises. The Supreme Court, Special Term, Nassau County, Joseph M. Conroy, J., entered an order dismissing the petition and petitioner appealed. The Supreme Court, Appellate Division, Second Judicial Department, > 1 A.D.2d 955, 150 N.Y.S.2d 363, unanimously affirmed, and petitioner appealed on constitutional grounds. The Court of Appeals, Froessel, J., held that on the record, petitioner failed to establish proposed 44-foot rotary beam antenna tower was an accessory use customarily incidental to a highly classified residential area and that zoning ordinance under which a permit for construction for such tower was denied was unconstitutional as so construed and applied. Order affirmed. Van Voorhis and Burke, JJ., dissented. West Headnotes > [1] >KeyCite this headnote >268 Municipal Corporations > 268X Police Power and Regulations >268X(A) Delegation, Extent, and Exercise of Power >268k594 Ordinances and Regulations in General > 268k594(1) k. In General. If the construction and application of an ordinance deprived a landowner of the use of his property on some basis wholly unrelated to the police power of the State, such ordinance would be invalid. > [2] >KeyCite this headnote >414 Zoning and Planning >414II Validity of Zoning Regulations >414II(A)In General >41406 k. Aesthetic Considerations. (Formerly 268k601(7)) Although a zoning ordinance may not be supported where it restricts use of property for a purely aesthetic reason alone, such considerations may be given weight in determining the validity of an ordinance. > [3] >KeyCite this headnote > 92 Constitutional Law > 92XII Due Process of Law > 92k278.2 Zoning, Building, and Planning Regulations > 92k278.2(1) k. In General. (Formerly 92k278(1)) In determining whether a zoning ordinance constitutes the taking of property without due process, question of whether a landowner is being deprived of any substantial part of the value of the premises involved must be determined, as well as question of whether landowner is being totally.prevented from carrying on his hobby. > [4] >KeyCite this headnote >268 Municipal Corporations >268II Governmental Powers and Functions in General >268k52 Political Status and Relations > 268k53 k. In General. The federal government has not preempted regulation of amateur radio to such an extent as to preclude a municipality from regulating height of radio tower to be constructed in certain zones. > [5] >KeyCite this headnote >268 Municipal Corporations > 268IV Proceedings of Council or Other Governing Body >268IV(B) Ordinances and By-Laws in General >268k122.1 Evidence >268k122.1(4) k. Weight and Sufficiency. (Formerly 268k122(4)) >414 Zoning and Planning >414X Judicial Review or Relief >414X(C) Scope of Review >414X(C)2 Additional Proofs and Trial De Novo >414k644 Weight and Sufficiency of Evidence in General >414k645 k. Permissions or Certificates. (Formerly 268k621.55) In proceeding on petition under the Civil Practice Act, S 1283 et seq., for an order annulling a determination of the Board of Appeals of Village of Westbury, denying petitioner a permit for construction of a radio tower on petitioner's premises, on the record, petitioner failed to establish proposed 44-foot rotary beam antenna tower was an accessory use customarily incidental-to a highly classified residential area and that zoning ordinance under which a permit for construction for such tower was denied was unconstitutional as so construed and applied. ***489 **381 *385 Quayle B. Smith, admitted on motion pro hac vice, Washington, D. C., Louis H. **382 Roth, Jamaica, and Paul M. Segal, Washington, D. C., for appellant. Frederick E. Weinberg,New York City, and Donald M. Booxbaum, for respondents. ***490 *386 FROESSEL, Judge. Petitioner is an amateur radio operator, duly licensed by the Federal Communications Commission to operate and maintain a station at his residence in Westbury, Long Island,which is located in a 'Residence A' zone of the village, the highest classification of zoning. Fora period of seven years, petitioner operated his station using an antenna on a 10-foot wooden pole. He now seeks to replace it with a 44-foot steel tower. Application for a permit to erect the tower was denied by the building inspector on the ground that 'it is neither an accessory building or use customary to a residential dwelling and the same does not belong in a residential zone'. On appeal to the Board of Appeals,petitioner claimed that such a tower'is an accessory use with and customarily incidental to a private one-family house', _and that he had the right to a permit therefor. At the board hearing, the Westbury Gardens Association and 20 residents of the village opposed the granting of the permit, while 5 persons, only 3 of whom were village residents favored'the application. The evidence before the board is ratheribriefly presented to us by way of an 'Extract of the Minutes of the Hearing', and what appears to be *387 only a summary of the testimony taken there. The text of a number of letters concerning the matter sent to the board was not included. There is no evidence in this record that an amateur radio station cannot be operated without a 44-foot steel tower for an antenna, and there is evidence, as already noted, that petitioner had been operating for seven years previously. The board, after considering the matter for more than a month following the hearing, - - unanimously voted to affirm the ruling of the building inspector refusing the permit. In an affidavit submitted by its chairman in the present proceeding, she states that, in the view of the board, the proof at the hearing established that the structure would 'be an eyesore in an exclusively residential community occupied by private homes situated close to one another', that it would be 'a menace to the safety of children', and that it would have'an adverse effect upon real estate value in the neighborhood'. No such structure as proposed has ever existed in the village. In this proceeding to annul the determination of the board, and to compel the issuance of a permit, Special Term was of the opinion that the'erection of this rotary beam antenna tower'was not 'an accessory or customarily incidental use of the premises'. The Appellate Division, in unanimously affirming the dismissal of the petition, stated that it did not find it necessary to pass upon the question as to whether the proposed tower is a permitted'customarily incidental' accessory use 'for in no event has appellant shown a clear legal right to the relief demanded' (> 1 ***491 A.D.2d 955, > 150 N.Y.S.2d 364); if the tower is not a permissible accessory use, the building permit was properly denied; if it be a permitted one, the tower must be considered an accessory building, and therefore limited in height by section 11 of article III of the Village of Westbury Amended Building Zone Ordinance of 1937 to 20 feet. Since we are of the view that the proposed tower is not an accessory use, and the ordinance when so construed and applied is constitutional, we do not reach the question as to whether restricting its height to 20 feet would be valid. While we are all familiar with antennae used in conjunction with television receivers, and their appearance on rooftops is apart of the national scene, there **383 is an unmistakable difference between the ordinary television antenna and the 44-foot-high structure petitioner seeks to construct in his back yard,which is more akin to a commercial broadcasting tower. It is clear *388 that, in the conduct of a hobby, the scale of its operation may well carry it beyond what is customary or permissible. Thus one who builds a stable in which to keep show horses has not constructed an accessory building (>Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346, 113 N.E.2d 816). So, a simple workshop may be expanded beyond all reasonable bounds. Similarly, maintenance of a candy, tobacco and newspaper counter in an apartment house is not an accessory use of the premises'(> 140 Riverside Drive v. Murdock, 276 App.Div. 550, 95 N.Y.S.2d 860).' In the present case, there was no sufficient showing that it was customary to have towers of the kind petitioner desired to erect in'A' residential areas of a suburb. While we are informed that there are 146,000 licensed amateur radio operators in the United States, we are not told the number using antennae of the type petitioner seeks to erect, nor where amateur operators having such towers reside. In the absence of such evidence, and yet with due regard for the valuable services rendered by amateui radio operators, it cannot be said as a matter of law that the erection of a 44-foot steel tower in a compact residential area of a suburban community, where dwellings are restricted in height to 35 feet (Building Zone Ordinance, art. III, s 8), is a customarily incidental use of residential property, or one which might commonly be expected by neighboring property owners. In failing to draw a distinction between ordinary television and radio antennae for reception on the one hand, and an elaborate tower constructed for the purpose of far-flung radio transmission and reception on the other, the courts in the cases cited by appellant merely considered the kind, but gave no consideration to the degree of use, in determining whether or not a given structure is customarily incidental to residential property in a highly classified zone. Moreover, in>Village of St. ***492 Louis Park v.-Casey, 218 Minn. 394, 16 N.W.2d 459, 155 A.L.R. 1128, the action was for an injunction; >Wright v. Vogt, 7 N.J. 1, 80 A.2d 108, involved an exception to a height restriction, and in>Appeal of Lord, 368 Pa. 121, 81 A.2d 533, no one opposed the application, and the court conceded the question was a'close' one. > [1] Petitioner contends that the denial of the right to erect the tower constitutes a deprivation of property without due process of law in contravention of the New York State and Federal Constitutions. It is clear that if the construction and application *389 of the ordinance deprived petitioner of the use of his property on'some basis wholly unrelated to the police power of the State, the ordinance would be invalid(>Nectow v. City of Cambridge, 277 U.S. 183, 187-188, 48 S.Ct. 447, 72 L.Ed. 842; > Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303; >Concordia Collegiate Institute v. Miller, 301 N.Y. 189, 196, 93 N.E.2d 632, 636, 21 A.L.R.2d 544; >Baddour v. City of Long Beach, 279 N.Y. 167, 174, 18 N.E.2d 18, 21, 124 A.L.R. 1003; 1 Rathkopf on Law of Zoning and Planning, ch. 8,pp. 141-145). > [2] This is not such a case, however. There was some evidence before the board as to the tendency of children to climb on such towers, which in this case embodied a solid loop stepladder, and the board could have regarded petitioner's offer to fence in the tower as insufficient protection. Moreover, there was evidence as to the effect of the proposed tower on property values. There was also evidence before the board from which it could properly find that the proposed tower, 'constructed to withstand winds up to 85 miles per hour', and to sustain a 3/47ton load, erected on a 6-foot triangular base, would be 'an eyesore in an exclusively residential **384 community occupied by private homes situated close to one another', and would not be in conformity with the character of the neighborhood. While we have never supported a zoning ordinance which restricts the use of property for a purely aesthetic reason alone, we have stated that such considerations are not wholly without weight(Baddour v. City of Long Beach, supra; >Dowsey v. Village of Kensington, 257 N.Y. 221, 230, 177 N.E. 427, 430, 86 A.L.R. 642; see>Perlmutter v. Greene, 259 N.Y. 327, 332, 182 N.E. 5, 6, 81 A.L.R. 1543; 8 McQuillin on Municipal Corporations (3d ed.), ss 25.30, 25.31). > [3] It should also be noted in considering whether the ordinance constitutes a taking of property without due process that petitioner is not being deprived of any substantial part of the value of the premises involved. Nor is he here being totally prevented from carrying on his hobby, as was the case in>People v. Miller, 304 N.Y. 105, 109, 106 N.E.2d 34, 36, where we quoted with approval the statement in>Barkmann ***493 v. Town of Hempstead, 268 App.Div. 785, 49 N.Y.S.2d 262, affirmed>294 N.Y. 805, 62 N.E.2d 238, that "Depriving (defendant) of this pastime does not affect substantially (his) property rights *, * in the use of the premises, which are otherwise undisturbed and unimpaired." Thus, balancing the restriction as between the unlimited exercise of petitioner's hobby on the one hand and the public interest on the other, it has not been shown *390 by any reasonable interpretation of the facts in this record that the ordinance is not justified under the police power of the State (> Shepard v. Village of Skaneateles, 300 N.Y. 115, 118, 89 N.E.2d 619, 620); and even if the legislative classification for zoning purposes as construed by the board be 'fairly debatable', the legislative judgment must be allowed to control (>Euclid, Ohio v. Ambler Realty Co::,; 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303, supra; >Rodgers v. Village of Tarrytown, 302 N.Y. 115, 121, 96 N.E.2d 731, 733; Shepard v. Village of Skaneateles, supra; >Town of Islip v. F. E. Summers Coal & Lbr. Co., 257 N.Y. 167, 169, 170, 177 N.E. 409, 410; > Wulfsohn v. Burden, 241 N.Y. 288, 296-297, 150 N.E. 120, 121-122, 43 A.L.R. 651). 'The correct rule to apply where 'underlying questions of fact may condition the constitutionality of legislation of this character' is to uphold the presumption of constitutionality in the absence of'some factual foundation of record for overthrowing' it. > O'Gorman& Young, Inc., v. Hartford Fire Ins. Co., 282 U.S. 251, 257, 51 S.Ct. 130, 132, 75'L.Ed. 324.' >Town of Islip v. F. E. Summers Coal &Lbr. Co., supra, 257 N.Y. at page 170, 177 N.E. at page 410; see, also, Wulfsohn v. Burden, supra. > [4] Petitioner further argues that the denial of a permit to him constituted an unlawful invasion by the municipality into a field of regulation fully pre-empted by the Federal Government. The general purposes of the Communications Act of 1934 and of regulation of radio communication in particular are set forth in>title 47 of the United States Code Annotated (ss 151, > 301). Under this general authority, the Federal Communications Commission issued a series-of regulations governing amateur radio operators(Code of Fed.Reg., tit. 47, ss 12.0-12.257). Among these regulations is subdivision(a) of section 12.60 which provides so far as pertinent here: 'No new antenna structure shall be erected for use by any station in the Amateur Radio Service, * * * without prior approval by the Commission, in any case when * * * the antenna structure proposed to be erected will exceed an overall height of 170 feet above ground level'. Petitioner's argument that this regulation has totally excluded all State and municipal governments from the right to regulate the height of proposed antennae is not well taken. The area of Federal pre-emption in the field has been held not to include disputes as to contracts of the licensees ***494 > (Regents of University System of Ga. v. Carroll, 338 U.S. 586, 70 S.Ct. 370, 94 **385 L.Ed. 363). In an earlier case, >Radio Station WOW v. Johnson, 326 U.S. 120, 128, 131-132, 65 S.Ct. 1475, 89.L.Ed. 2092, it was pointed out *391 that States still retained some jurisdiction over the physical property of the licensed radio station. In the instant case, local regulation does not conflict with the purposes of Federal legislation. The Federal Government, in granting amateurs licenses, is concerned primarily with their competency. Limitations with respect to the equipment they may use are uniform and nationwide, and are not attempted to be related to their danger in their particular locale. Thus, if the regulation referred to above on the subject of antennae were exclusive, every amateur could build a 170-foot tower on his premises, without even consulting the Federal Communications Commission. Particularly in dealing with amateur radio, which is often carved on in the amateur's home, problems arise that require for their proper solution thorough consideration of the particular area and surroundings. Regulation of these matters may well be left to local regulation without impairment of the national interest in the matter(>Parker v.`Brown, 317 U.S. 341, 362-363, 63 S.Ct.'307, 87 L.Ed. 315). This conclusion is further borne out by the lack of a clear intent in the statute to remove from local administration matters concerning the public safety. It should be noted that the denial of a permit to the petitioner in this case does not prevent him from exercise of his federally given right to operate a radio station,-since he may do so with another kind of antenna,and such denial does not conflict with Federal law, unless, despite the zoning ordinance, the regulation be read to give any amateur,the absolute right to erect a 170-foot tower as an antenna q wherever his station is located. f The cases cited by petitioner in support of pre-emption are readily distinguishable. >Federal Radio Comm. v. Nelson Bros. Bond & Mtge. Co., 289 U.S. 266, 53"S.Ct. 627, 77 L.Ed. 1166, does not involve any State or municipal action; it is merely a review of an F. R. C. determination. In>Dumont Labs. v. Carroll, 3 Cir.; 184 F.2d 153, a State attempted to impose its standards on program content, clearly a matter for Federal regulation exclusively. In> Whitehurst v. Grimes, D.C., 21 F.2d 787, and>Tampa Times Co.v. Burnett, D.C., 45 F.Supp. 166, States tried to impose license taxes upon stations operating in interstate commerce. In>National Broadcasting Co. v. Board of Pub. Utility Com'rs of New Jersey, D.C., 25 F.Supp. 761, a State act was held not to require N: B. C. to obtain a certificate of public convenience from the New Jersey Public Utility Commissioners *392 before constructing and operating a transmitter for which it had obtained Federal Communications Commission ***495 approval. The only holding in the case was that since N. B. C. was to be engaged in interstate commerce, and the.statute was concededly unconstitutional as applied to broadcasting in interstate commerce, the court need not decide whether the statute is invalid as applied to intrastate broadcasting. The recent case of>Allegheny Airlines v. Village of Cedarhurst, 2 Cir., 238 F.2d 812, is also not apposite here. In that case, a municipality enacted an ordinance in direct conflict with Federal regulations on the subject. The subject matter of the Federal regulations was the minimum safe altitudes for landing at airfields, clearly a subject within the province of the experienced Civil Aeronautics Board, and one to be dealt with in a uniform manner. The court which affirmed the decision invalidating the village ordinance pointed out the variable factors which had to be taken into consideration in deciding the precise safe height for landing. It is significant that all of"these variables relate to decisions which the court said could'only be - made by some specially equipped administrative agency' (>238 F.2d 817) dealing with the problems of air flight. In the present case, the Federal Communications Commission is not the appropriate expert body to determine local zoning problems. **386 > [5] In summary, then, we conclude that, on this record, petitioner has failed to establish that the proposed 44-foot rotary beam antenna tower is an accessory use customarily incidental to a highly classified residential area and that the ordinance in question is unconstitutional as construed and applied. It may well be that on an appropriate application and a more fully developed record petitioner may be able to demonstrate to the board that a permit should be issued here, if not_as of right, then by way of a variance. Accordingly, the order appealed from should be affirmed, with costs. VAN VOORHIS, Judge (dissenting). This appeal concerns the constitutionality of a village zoning regulation which prohibits the erection upon appellant's home of a steel tower more than 20 feet high, to support a rotary beam antenna used in connection with his federally licensed amateur radio station. Appellant is one of more than 146,000 licensed radio amateurs in the United States. He asserts that this structure is naturally *393 appurtenant to his home, and that-forbidding him to construct it constitutes a deprivation of property without due process of law in contravention to the Fourteenth • Amendment of the Constitution of the United States and article I, s 6 of the Constitution of the State of New York. He likewise contends that the action of the zoning board constitutes an unlawful invasion by a municipality_ into a field of regulation pre-empted by the Federal Government. ***496 The zoning power-is subject to the constitutional limitation that it may not be asserted r,ti arbitrarily or unreasonably, and this is so whenever the zoning ordinance precludes the use of the property for such purposes as it is reasonably adapted to (>Vernon.Park Pealty v. City of Mount Vernon, 307 N.Y. 493, 499, 121 N.E.2d 517, 519; >Arveme Bay Const. Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 117 A.L.R. 1110). A zoning ordinance would undoubtedly be void which prevented the use of this parcel for residential purposes, and that includes whatever uses are accessory to residences. If it were necessary in a particular location to maintain television aerials more than 20 feet in height, I think it would be conceded that such a limitation would be ineffectual. Television, in most people's minds, is as inseparably related to keeping house as a kitchen. Although amateur radio sending and receiving stations are less frequently encountered, they, also,,are inseparably connected with the home if one is an amateur operator; that is to say, 'ham' radio operators cannot carry on this activity except in conjunction with their homes. Prohibiting the erection and maintenance of suitable aerials outlaws this activity for practical purposes. In my view a licensed radio operator has a right to operate, of which he cannot be arbitrarily deprived without violating due process. These people include a sizeable proportion of the country's most promising embryo scientists, especially in the urgent field of electrical engineering and electronics. They are, as a rule, the self-starters, people with the scientific curiosity, energy and imagination that are so necessary not only to the advancement but actually to the safety of our nation. This activity not only helps to qualify them to fill the ranks of scientific researchers and engineers, who are necessary to modern life, but„also these 146,000 amateurs have rendered and are becoming increasingly qualified to render indispenable public service through the operation of their stations. The *394 number of disabled vessels at sea whose distress signals have been heard and relayed by'ham' operators is large, airplane distress signals and communications likewise are received and civil defense authorities have publicly recognized that service which they are equipped to render in event of an atomic holocaust would be indispensable. It has been announced that they are part of the Naval Research Laboratory's plans for the tracking of earth satellites. Courts of other States have recognized factors such as these in connection with **387 amateur operators' aerials in zoning cases (>Wright v. Vogt, 7 N.J. 1, 80 A.2d 108; >Appeal of Lord, 368 Pa. 121, 81 A.2d 533; >Village of St. Louis Park v. Casey, 218 Minn. 394, 16 N.W.2d 459, > 115 A.L.R. 1128). No cases have been called to our attention to the contrary in this particuar field. ***497 The urge toward conformity in modern society tends to compress people into uniform moulds, and pressures of this nature beat hard upon zoning boards and municipal legislative bodies. Mass sentiment sometimes tends to drive out the most essential and publicly valuable activities or services, even to the extent of forbidding electrical distributing substations,of public utilities on which the lighting of the municipality depends (> Long Island Lighting Co. v. City of Long Beach, 305 N.Y. 880, 114 N.E.2d 429). It is a necessary function of the courts under the Constitution to prevent such tendencies from going to excess. The operation of these amateur radio stations is impossible except from the operator's home. That is the only place where he can send and listen to other broadcasts hour after hour far into the night. That is what makes these stations, in my judgment, accessory to the home,which is true to the extent that if their maintenance at home is abolished, the effect will be to abolish them altogether. I think that it is an accessory to residential use which cannot constitutionally be abolished any more than other accessories which enter into the enjoyment for which residential buildings exist. The order appealed from should be reversed and the determination of the Board of Appeals of the Village of Westbury should be annulled, and the board directed to issue to appellant the permit for which he has made application. CONWAY, C. J., and DESMOND, DYE and FULD, JJ., concur with FROESSEL, J. VAN VOORHIS, J., dissents in an opinion in which BURKE, J., concurs. Order affirmed. N.Y. 1957. PRESNELL v. LESLIE 165 N.Y.S.2d 488, 3 N.Y.2d 384, 144 N.E.2d 381 END OF DOCUMENT CS . 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T'a one and one ti'zx1J?:_k= ! we ,n i _.tli3 .1 ii. s ory dwei „i T iF5S than K�� On ire,. f_.,o� vr. g::eund i eve' ic•' "r±E. a". ksV - .ou;tu<ildi :. irk.. r s:;.' =• +' .x^,"..titres:z=-=.�..�uaY,�s:2..!+J..,aw•.i."?t%A�'' 1.. j7ira•:`.tl:l! tsl��(olfu eCsr: '•(+0;''�9U-s,, OY�f (VYTzR�OP,MR : 4 a�? d''��,.trU'r •�IcTd"".f•t'�li�_;J":�,��J'.'ykr�S :a'Sum:dFw'• g�'"e� �,}nk2 ??:.Y S* . c�Ff:'"'��-'.�•JP" 6i"e�.k'�'"T.`J'Tx�s t:�, .._r'v�+2„',",.".�?,5.'•,�'JFf -T. -s` 'r^':uti{"1_r�;t wu PI 9 f��l'Sad':in�L'": d n� r'E'..• OT.:,X�-tc':':l"'_,� d,�r~.�Yl a •e�3., y�m �..f;_,.; „Ya.^S. Z,_.•m.:�,w�[i,<Li..r-.�FtiT<ps'�!1.5.•.B,�+.,..'�:�:F..-".zt.sw. t 'f •�•'4<.. �. C. r: NO 1c•t Kali be SUbdi'ri. , r -ret'e C Or . soid ..?C w' ,-ie witho+ _ •..,e ..r-tter c*nsenil of the 3, loo r�i. __, bas�menc., ter, sl e ck or garage shz*& = r.e.ccad. idra3'' u; inaints,:e1, .teed or occs.Tpted on any lot"`:f0i' a N s Fuse as re.sidencc .-irliez _ernpurr cil . rJ4=rrt:enentl k.r:d _nz usual small,:phi-':' t' 9, No siyra o° an. _. �+_'essii.•r. �r si,,r sham oe erected, mairt.;�irted or '19Pl2LyP.d .wit.hroittyr.........,,yV 1 ;tiub_i.c. view on at aor.t:icT.t of ,.ate .:ano cr l�ui_tdings i w'; ritten consent. of Declarants, and then only upon such•dca'T�C�te�:, Yteidcf;`' ;a1T: is or ` ;tot �Jwevr prchibi : sign :u s sed by the Decia_�, the h r =: ;� : sU+=C•=SS::YS dnd of foie DE'C;.ardTiLS. .: .. ��"wre" =a+ t.1 t;.�;d �;�•,��w1,r�4,,J�',s.;alp-l.p�• ,¢;r�s,;+,..yyJ:'r , y:,..:� _,..!--�_>.,,E��,;.�".+Ab}i C,4'7.P.Y z.,va.�t••^.�... psi; �a'yys��e<;�)^ '-?t title 1 ,�e::ed or lai;d t- :tP 1. No tie t.G and it. stLeet ; :eyed or i:._.et,de. is a conveyed .t the Decl©: ants is :or ' w4 and ctie .fee. r '�cS erve the owner of any lot. .r the bed of any and all such st_eet:s, and f.uitl�C:' ..' horlty all•.. ` a r; re Z.s;e righ f a .he right, ti:t).e and interest of Drc<<=rants it, IIzd to, nti ',' d, t any time dedta�t;•r` " c i; of, a`1 bJCf1 streets, should the Dec) tents o ~' e x pej I Ant to do so. i.t-. The. ext:er.i.or: Frchit-ectur.! feeI"Ecs of any and 'i311';: s l ihat oi. New England ;zrs.t :,uildings abd%o.r s_rut . ;rr s steal ;e .;: al Cape Cod "r ) ).s':at. 1 Far�!5 t <.:i character dads- , _4 Color. eau:. t .��t, se,.1 _ '.'!•,.F'� it jS"',`;�Y�.,k,$,:. ti �- F�'ti,4�*,t=`'J��'a 'fir,': �`F:i _ F.„ .y{_-.'f> .Y#�5 's�, a•3- ];l f'^�rJ�� ;1�- ,61Y7 3 fm 91 _ -r .,.+,•�- - ..,',e Leti_arz�nts So, :"i F'Sigj". cos if. F; s r)� NC.--bk.J I d i n,g r',d, .,_ .rF:' ,i: r;ature descrip=s_ trt, _he_•eof be cot* ., Or ., �.',. .. _ erg;..L'et'., ":Gr .... .. ,. •��. 1 cu(+:Liri:s tG Uny ,'nor si:ai ary ex ar.i _ "'BLj .tress arid' unL-i.i .'ill. p:hC'S, Sp6C-',.L `'r.'tf--ns ;•ui_. :lanc: �,nd Other. ir.fc rraa',':_�x i, _ n , . dicig elevations, -=t.' _a:d ipprGFiri_t390i8.. nr t'he r.r.terior _rc hitectu.r�i :estUres ..nd design of the .Samie;:;:i�'-i first :it pr.:ved it w•ri'. n•.; 1••,• � Gec.,.u,::a:r S. All :J:'. Crccpl «): _ter:.l.r.' ccnstr..._._v::, ')ain:inn an yi :a i i""1 ,il off.. r:.�r,5tracti. u'i.t.i,in orie !i.) ye_,r. :il�1•.e� cGrta+erc.em_.: v_ ._F. - 9'fir. 7cC;.• 1t:5 sh.,:,z h .vc '.'`• : r ;2' end ''^er.eby resOtvd'j he Consent Of tC:r owner, mo ?�<:�.;ee :-,r, other li�k� t• er i t• eeme:; ., .sJ.d +ar-nt eas'em tis +L `• , 1 h, . ' ;,t;errise, to electric, 1 int leis lions: pe):pe airy cr . r.� .tl is -,n;: '1.,,. :,•. �:=rt.1.c'ign:'l ''t�Y'� :,; yvVC:rumen tal autr )C::.i'%Y U) erect, st.:=;_1 =�;,'i to�.intai.n telepY,bii'c►'�`� '• enu electric. appl.ratus and eyuii>meni through, under+, ;prx. &nci along the pr:.uert; :i.nvs of r.y;Lvi =r. lot now or r a [_ not P_Xceed-�;•.i0, ` t: u o:, s id. prem:isrs for r [ i.'SF.�nC' in a �, 'td }.n• -••'Er:,- thr,ongh, under, up6n cr -�ILdy„at vten • =Rye. aionq -n,• street, ri ht u; way or t.he.r trcro;y,fare now 4x } 7?ere�fter. aid Gl t :;:+or. s�.id P owning any ,her c;> tint part. oaf t k. �° tr, :;�e Declsrartts� tiht owner, morE�' as r ;ind hereby r-sae '` gngee or other tienor, >Dhc�11 ha-re the riy'rt:: Y t:h-a right ai_ an. time to ti1Ler., mGdi , pL. iinmil., in whol.a r�rt, uny and sit V.. tt1E L''351 i ':iOt13, '_Over,artzi iv.nd cam' ,. ar:: or the. et forth i.h per:1arai.iot; - premises µ`:f ,WWR MIT V RUMM. T W�VOITUQ`:�r TileDec_, Decermnts, snail h,.ve the. right ax1rJ i-r eb y- r.o. OC& W1.th or •withGU" a Conveyance of title to ithe right. to flssit;r, n of the rights and. part of t-j-.e aforesaid premises any Or a tained, by in, instrument in rdc��e D,(:Jarants herein.con iT t,.- or not such. 'a, cable form, and the assigbee have title to any part 3f tnc af�resa{d premises; � powers and be subject to the giAjKe' . :he same rights and Lind as si�4 by and -given !obligbtioris and duties as are reserved by the Declarants hereunder. 17. The Declarantsreserve 'title to the park, bec! },remises designated zit ,water frontI.o,:,�ItI!--,' at the Pr J. -ground" on the Map entit.'_ed ,Map cf Petty's Bight" a.t. xeu York County of Suffolk, State Of oy Sjithold, 'rown ­F suffolk, the County oil th office of the Clerk of the _91 of th e P n P I a V Q r`G einafter reFft:�-:e4 to as t of all Owners of s,:id premises Or use and enjoyment ... L.Lhwre_-Of subj�ect to such reasonable ruses and regulat,. Declaran-ts e be established by the from time to tim owner of said premises, or any by the a CAP.t-axwe of deed thereto, covenants and—, t. st _;a� of May in eaa azbd��;.,__ pay to peclarafits, OTI the used by Declo.rants to PaY. al an annual cbzLrge to be 'the rvate treets and U).e "Park -P , ssessed t20m r.�ets end t.,,ne Cos t of 11.ciAnten6lIce 01" �iu­h st p. nd 9-round". .5q!qh annual char.g.e shall not, however:, it sur. of ten,nt-1-1.8 on each dollar Of dssessQd v Own ents! owned -Y each premises improvem ors of the Town Of 3QU year by t)le tdX 6SSe-55 Ail at paid when due, the same-I S. event th.I)t such is n e.v e N 01. _2 _w �k and resiain a 1-­-en upon then premises of such osttt Y 'fi '1) J'. i become j paid find the Declarants sha11 hove the right to colter— sauce anal to enTforce the :ien t '.s:_'�f by arty maan3 au'tl'' �i �_. : -. 9. This Declarzition shd11 be binding upon. inu�ce ` } Dcoefit of ands be enforceable by the Declarants, the r S_U nJ;'. and (sub1ect to the ri.yht of tht6 DeclhXei s A' .,J arkd assig, , .�. #-successors and assigns' to alter, modify or annul th'is:•D ,, - J ' .` } as :sat forth r, Paragraph Fifteen) any owner of any t��1., u Itfi9 remises; their heirs, legal rep.reS-"4i;4t' afor,e,saivi. p aiad. aijnsy snd the failure by any itis'ugcessgrs-anf'o.rc�t any of such. co•n"ditiunscov�na.nts gad 'ced,i•rz ae revtbe dieiiued a waiver of the rigtJk J; 4'1 covenant and .agree tho t., w�:vsne.vs.r J1F" e Declarants is regt� w` Sri'mitts,6x+c�lvY' �aFtl�'roval'.,;08 th'. «, tee•:.yn .. :,,? sir. :C-, .i:"• .t�adr.. ��'�`c.;_ fir' �r'x:'a+'i�J,,:^','ti''•< �"n�.'�+�tys^��-f;,�rY.�•Y.,tf.:�;'',+S '' ..�.�"' W .�s,e• >_. `'xfi� 4 7.;c`:?^''''"`s�. 6-:C..�t:< .,g..":. i•' ;��::,:• �% :• '' :.i! l�lY.'�t4,` •� a•don-alAY :riitheld:. KN 4' covenants, conditions o'�eq:vijig be construed as ret1; ' < o -sha'l.l conctinue and reieai-n;3. riith th'* 'iaril as aga'inst-tne -oviiar yr1> `.: Y.orCe a.ad acll;:t'Sates ;'�r� -�;;;,�: •,.: :r }.,":' the o7 �• . f until l�,,{'�• ~':' z��a3�sa;�' city: 'eze;o y;h,�•;,-. � t n hese,af shal'. he!'`a ; of it�1z 't- I?�i:l t3a.e pydvisio s ' e> ?i faded 'f:ra,~,�s;U'-ice sfi.v :f- fiv� 5) ,ye` �•; 4�^Q �� be:toce::1 �'r;T¢^r.'.$` a���.;i',r1,KF"i=r'.` .{`y:'' `.i=;`'.; 'r'• 's:.bit ',. •:f±: i` zy3Ys.i?. ". -=' �';.1,,_ .5 •�Te�°':b!Mf'i8.3',. r=i•' !, .,�F"r '.cerst of the premises agfect�e�f,.-,. . % �.- ,K d # ' written i.nstr'Liment 'itfl•y<;: ` ?j visSon.s cot'rarlr�'. r i' � zlfijt Gle'r '"'s G?f.ice determine t i''. `, aa� • _° :6 fir=""-',x;�" �,.:.,"e:',''.;.� �:-,p M-1 0- F;cy�y"r, i�e1<�gY1Gr "� �� •�r �co:. ei:,'i1,i;;lf;.?:ti'�.;"',` - .�7"+`�.�• �g.'x'�.'',rvy.,rn.. 1 '�' .����rY v�i= •4i:�,, r_�N?�.�T�} 'f'. A - z t.`i;i .C:. a�'`t':M1i�� `ki li r•'l �, '1,1,•::�s':r ';';.�f,2if(3Y,�1.C• f,...` ,n.. < , �`i�����,f'=• - ' ,ItiM AMME.X$D '_I-o AND FORMING A PART OF DECLARATION BY IRVING XEWKAN AND GEORGE NEW4AN DATED THE DESCK-PT1ON ": dot"_', f l7vrth'5 • " *"-.'`;fir;. that certain plot, piece or parcel. of land, adth :fw-<.;{4,tf t•Y " 1,; 4 !buildings and improvements thereon erected, situa.t.e, lytiaq•;Fati�,� ibeiny et Ot:ient, i.n thct Town of Southold, County of Suffol'ki= •S'.tate of New York-, bounded and descrii;ed -is follows:. g3 nEGINNLNG at a point on the ro:tY'r sterly bide of Ol.d Road, 146.7$ fee.`. noeth.westerly :long the northeasterly'a 6 from the i;oxtherly line of Main Roi,d; :ram said point oegirniszg run'r.i*9 along said nortneasteri line,of tAEe'�:lil ,. Y jgord, i• 40` 2i 30" W. - _50.0 ft:et; thence alon.g. . , d' . Sle 4 jeski, four' courses. (3.) N. 49' 35' 30"' E. - 185.3E feet.; thence, 2` N. 7''49" 20" W. - 9,5..'-5 feet; thence i ( : - 238."?T feet: theni:e d (' (3• N. 45 z0 00 W. j (4) al. c4" tiC^ 00" E. - 410.0 feet; to ard1nat�,;h Tiwa-ter wart of .Long Island Sound; thence along sa: Q 3Ya,hkk ?{m-tvk es mea'svved by the following two tie lines; ,r , 419.78 -feet; thence ;i ,2) 5. 48' 41' 50" E. - 419.09 feet to the '---and of.,�S S• three bourses; 4 thgpce along said land' of Binxely, S. "' 45' 2i3" E.- 954.6 feet., thence., !y . ([) 5. 0• �" 50" E_ - 50.14 fee-t; tne:rrce i; (3) S. 6' 10' UO^ M. - ;9 .'» feet to said north*sly`a,iii»� - r'fir If' of Dkstn road; thence along said northerly line N. 76`.'' o.fiw` �r�+•r land of C'Kula, three courses: .a '.. ,,.A feet. bb ?4 feet t hence 6 10 00" E.. - lEi. , x> (2) N. i.0' ?.3' 'S0" W. '- 125.95 feet; thence :'.," '"` 33 S. 89' 36, 30" W. - �38.8% feetto land of P&dzp .:. i; thence along said land o`.Prezpiord, two cOurses; _ 'E•53 feet; thence aR (1) N.. 14' 14 00" W. # (2) S. 5�" -,S' 00" W. 30:.b9 feet to the pout o!`;.beA 'j co.r,taining 19..12 acres. M't v�C r'c .y ?:: -:'-' .. 1• WiN 1. N✓ H-•: i �• •! ' ;2�i:,yi:•�!.;: `��� e:E+�w�-`l• !ter_ i-r,a�'.:�.�..: � � .,:.�.re`,'' c. [�' ;....- ��.'��r'-_,�: �,.. :i -, , ,- -�b�±..:ice''<::_�°,�;T,'�t:.:�,•:�>,. .-�.. w J�rt_nyS-�.-ti "�-, 1 :�X�` .7_.. � � i��ixj�T E!•� of an; of the aforesaid pr.oyisioAe by judgement or order of a court having juri.sdicti-Q'n,, . (r sh.al1 not a-ff;ect any of the r emir._ninq pro inions herso'f`i shei 1 remain in full force and effect. ;�v rr Ix iTL.TMESS WHEREOF said Dec;grants haze sct their harm: J.7.r 'r t ;. { t , af`f:i5ti Wi their 'sesl the. day and year first: above vxri.tten.. r!!p'an • f tom`• >1 _ r"'•:,f .f) s George Newman' x:•'. r" S2J1YE oy Ntw Y-ORiC, COUNTY OF SUFFOLK ss.. On the �/jiz.y "rw"d- mr ,�per'sone'l.i y came GEORyE NEWlfJ11t and IRV3lEG . du 3 s described in and wrho: ex'" k�ri�wri to..te'=.•ttse nd`iYxls acic�ib wi-dged the ttie'' tr ;.4aieg0ix i'�XiB;.ti�umenti" r�`tid` `:.,. dame. t( uo.urkir. Qrt " .tom,-,> -` 1 Tit„y, _ff "• �L .., ^ai •.E.'Y�' � S, Jam+' b'�,y�' �?�r'a y., � 'r��5ei''^ �£�.,,-.�.��.r�� •'• ;..C2.� q;:t. "- ��,''��3i-fy'y'p, ��ic ^y:ti 's�v.r J ,1,�• ��. _ .4 F.��—'t y� � 'g '��3.c�y'��,7��''t: t„ r• �.:,_ F"''�..ge, "i'�.� � ��' ` »'1y.� a•''} �Y�:.r aay+�-'�P�'`a�.: r,.t aY ,?�•>;b 7!..:a,`y;� .�',> -5?w..,i•.,�ii '- ,;:� v- -,:r:� a- -rt.`�_�._ '�,e -°r'F"'-ny�.,,�re.,�Cs.;h� gm, T 4 r 0 .�.-A.r v'>i'a`�j�"'+n�iT� u`� •7' f ' eC'.. �'��h � t''y �'�i ty�..•�41 '. �. .u''�.::-S ram' �. F . (ti•r.•� r,:.- � :`3-�:�'+�3.x3�. �•t�'y.�� � ���x � �i.. ;"�.-r �r� '�.. Y r'�•� Y�,�., .���,y�r, 't;fit'. ��a�ar''.'�; is � ", •--€, .u. �t, «r"• :`a•i»�i. may, +5:. r�� •� '4z �su y���'A- -a.2' F:4 �o,S. `�.'#'^Fi F>'• a �i'i {i, r ���+„ �.;�,�`'` �., <'�''�^ 3 <r.. �� .li�y,,.,r Y- «� ,4��.3 ri�w .•X..a�. a�- r'�; �..•..X�'. 'r; �eS, '�i,;. :xfi•• +�; �- .. ,,. 'F.`^. 'b' ,SS ,n•..` ,u►�� r'" qyE:• ;,`s. s�.. .�;....•✓.�:: '.t�' .�,`�. ;c. <CJ1�. "•7}y'V1,;✓.rS{•t � t'- `Fi ,iy:Er} - 'ate'. �i. '' z.' il.` i -''!•6,�R;�., �1. 4• b� a,,.'rf 4 nG 4" ,'ytr. ,.r� �`9:.(�. t-.ne -:r•1,'-:.+ �.. a d J .4 7x r.. •.,�'� >} :'( T"' '� Zfi �` atb� -3 ..,....�x:• •y'�j.."v.;.... •.y�'.n=� �� "`K':�.;2.. 3 r!.P;' t'� Q.. �: n3'. •2., v<.ry..�. •.+fix-{- .'Li-i T:R•7•. �w ,3. .k'+"-:c.•�' . 4'i .�� �i�•h'?.. :�' a-. .d� � �w.>o- 'a; •r� ���",•` �w. 9 .Ld�,.e:� i '4.-• _f`'.,'�.'t•. 's:R `v "�'.. .. '.:�3". v:r.• tk. ..r. ,T.,.s• .--<,`S�rc:• "�.. ..+:+ ..:`�+- t•, t+r. .�., i. .F E J •;t CC��,, ---"�,A. '.•:fi7• .9: � ..� „;� ,x. - •ce�a. - sz; i "rY[+x:.4 �� �... :.� w;.at• ._ .,»x �•• ♦ �r! 7..,�. .•�''a..:..�t. t•t>r � a„,? _ t x^±9 a r. : k "� ,a .+-,..x r ;r ��.'"-` t f `� _ c ,g, �. . �. ..-., -., ,..� •.m. n�. ,.z.t' S ;.,._...._ �. F. :w �.. •. X `:j. � :yr,'- •-`�;" T,• r,;c r a.ik7i.7.`:.-.� .RM i- ?•.. a.. ,��,._n :.'k.•:..�•[.4. _ f S .,, a ..a• .a r-r. f L � �.., ct 1 � i f�a-v'^�-� +gip.-s ?�- f- _ '. 'r -'^�`""v`(o:n�'� z 4 �' ,� ,t ...y.. r X.7 r 9 � l� lA: .L _ � c 5_•t:?,.. r 3 r ,,, � >, •t -7 tt , :.:_C na of !:i',' .:•�.; ,, rr.; #�� ...._ �,• �; •F h.`.,,f,� r :,` �+ ,. �- e -....:-f�` .. \z.� �.'( .-. ., c Supreme Court, Appellate Division, First Department, New York. EQUILEASE CORPORATION, Plaintiff, V. INDEMNITY INSURANCE-COMPANY OF NORTH AMERICA, Defendant and Third-Party Plaintiff-Appellant. Joseph M. Fasano, Third-Party Defendant-Respondent. May 28, 1992. Buyer of promissory note brought action for payment under financial guarantee bond against issuer of the bond. Issuer impleaded maker. The Supreme Court,.New York County, Lebedeff, J., denied the issuer's motion to confirm a referee's report and granted motion to dismiss third-party complaint for lack of personal jurisdiction. .Issuer appealed. The Supreme Court, Appellate Division, held that an instrument which is signed while still incomplete and later completed without authority is enforceable by a holder in due course. Reversed; complaint reinstated. West Headnotes > [1] >KeyCite this headnote > 56 Bills and Notes > 56II Construction and Operation > 5.6k134 k. Collateral Agreements. Expiration date in offering memorandum which was not incorporated into promissory note could not serve as basis upon which to find that the note had expired by its own terms. >[2] >KeyCite this headnote > 56 Bills and Notes > 56VIII Rights and Liabilities on Indorsement or Transfer > 56VIII(D) Holders in Due Course > 56064 Defenses Against Holders in Due Course > 56k368 k. Defective Execution. Rather than not coming into existence, an instrument which is signed while still incomplete and later completed without authority is enforceable by a holder in due course. >McKinney's Uniform Commercial Code SS 3-115, > 3- 407, > 3-407(3). **793 Before MURPHY, P.J., and>ELLERIN, WALLACH, ASCH and RUBIN, JJ. MEMORANDUM DECISION. Order and judgment(one paper) of the Supreme Court,New York County (Diane A. Lebedeff, i J.), entered January 29, 1991, which, inter alia, denied the motion of defendant and third-party plaintiff to confirm a referee's report and granted third-party defendant's motion to dismiss the third-party complaint for lack of personal jurisdiction, unanimously reversed, on the law, insofar as appealed from, the third-party complaint reinstated, defendant and third-party plaintiffs motion to confirm granted and third-party defendant's motion to dismiss denied, without costs. In February, 1985, third-party defendant Joseph M. Fasano was solicited to invest funds in International Dynergy, Inc. ["Dynergy"] to be used for the development and operation of electricity producing wind turbine generators. Under the terms of the offering memorandum, an investor could purchase generators in exchange for a down payment of$20,000 in cash and a $120,000 promissory note, payable in annual installments over ten years, per generator, and the investor would also be required to execute a power of attorney in favor of a Dynergy subsidiary and an application for a financial guarantee bond and indemnity agreement. Dynergy in turn would attempt to obtain financing from a lender who would be permitted to purchase the notes,but, if it did not close the entire transaction by May 31, 1985, the agreement would expire. Fasano agreed, in accordance with these terms, to purchase an unspecified number of generators and duly executed a promissory note, made payable to Dynergy but left blank as to date, principal amount and dates of payment. The note was to be held in escrow pending Dynergy's delivery of financing and Fasano's remittal of the down payments. This note contained a clause stating, "This note shall be governed by the laws of the State of New York applicable to transactions to be wholly performed within such state. The - Maker hereby expressly submits to the jurisdiction of all Federal and State courts located in the State of New York ...". Fasano also executed a specific power of attorney authorizing Dynergy, by one of its subsidiaries, to complete the note and agreeing to indemnify any third party who **794 relied upon the power of attorney without actual knowledge that it had been revoked. He also executed an indemnity agreement, which agreed to hold any surety harmless against losses arising from writing the anticipated bond, with the surety having the option to litigate in the county designated as its address. Dynergy failed to close the transaction by the May 31, 1985 *647 deadline contained in the offer. While the parties are in sharp dispute concerning the subsequent communications between Fasano and Dynergy, there is no question that Dynergy ultimately completed the note to reflect an amount due of$240,000, released the note from escrow, and sold it together with the notes of six other investors to plaintiff Equilease Corporation. On the same date, defendant and third-.party plaintiff, Indemnity Insurance Company of North America ["IINA"], in reliance upon, inter alia, Fasano's note and indemnity agreement, issued a financial guarantee bond in the amount of$1,080,000, plus interest, naming Fasano and the other investors as principals, with Dynergy as obligee and Equilease as permitted assignee. Equilease, upon its claim that Fasano had defaulted on the note, brought this action for payment under the bond against HNA, who impleaded Fasano. Prior to answering the third party complaint, Fasano moved to dismiss pursuant to, inter alia, > CPLR-321.1(a)(8) on the grounds of lack of personal jurisdiction. The matter was referred to a special referee who, after a`hearing, recommended a holding that personal jurisdiction had been obtained over Fasano based on finding that the note, which contained,the consent to jurisdiction, had never been validly cancelled. The IAS court declined to confirm the referee's findings and instead granted Fasano's motion to dismiss, finding that the lack of cancellation was not dispositive because the note had expired by its own terms and therefore was no longer binding on Fasano. > [1] We do not agree that the note had expired by its own terms before it was transferred to Equilease, the basis upon which the IAS court invalidated the consent to jurisdiction clause-contained in the note. The only document which mentioned an expiration date was the offering memorandum, which was not incorporated into the note. Significantly, Fasano himself has not pursued this argument on appeal. > [2] Moreover, we also reject Fasano's primary argument that, because it was completed without authorization, the note never came into existence and must be considered void as to all its terms. The Uniform Commercial Code S> 3-115 deals explicitly with the matter of instruments which are signed while still incomplete and later completed without authority by providing that they are to be governed by the same rules applicable to instruments which have been materially altered, found in S> 3-407. By no means can it be said, as Fasano attempts in this case, that in such a case the instrument does not come into existence. To the contrary, S> 3-407(3) *648 provides that such an instrument, as completed, is enforceable by a holder in due course. In the within case, it is therefore clear that, regardless of the resolution on the factual issues regarding Dynergy's completion of the note, there is absolutely'.nothing to indicate that the . note will be found to have never existed or to be void. Fasano's reliance on>Bank of New York v. Cheng Yu Corp., 67 A.D.2d 961, 413 N.Y.S.2d 471, is misplaced. While the court in that case held that the defendant, who allegedly could not read or understand English, was entitled to a jury trial notwithstanding a jury waiver in the note sued upon, such jury trial was directed only to the preliminary issue of whether defendant was fraudulently induced to sign a guarantee of the note without knowing its contents, which defense, if sustained, would have rendered the i� instrument and all its provisions, including the jury waiver, void. Here, in distinction, as already indicated the defense of unauthorized completion, if established, would not render the note and its provisions void but could merely affect the enforceability of the obligation to pay the note to parties who are not holders in due course. In that context there-is no necessity for a preliminary determination **795 of any factual issues relevant to the unauthorized completion defense. Since there is also no evidence indicating that the consent to jurisdiction clause itself was procured by fraud or otherwise rendered unenforceable (see, >British West Indies Guar..Trust Co. v. Banque Internationale A Luxembourg, 172 A.D.2d 234, 567 N.Y.S.2d 731); we find that Fasano's consent to submit to the jurisdiction of the courts of this state should be enforced. N.Y.A.D. 1 Dept.,1992. Equilease Corp. v. Indemnity Ins. Co. of North America 584 N.Y.S.2d 793, 183 A.D.2d 645, 18 UCC Rep.Serv.2d 467 END OF DOCUMENT - «10 NDP r OWEf•' p. 3 -1 BERG,EY W_ - -- --- -- C. PAGE 92 Noise Measurements on Bergey Windpower Co. XL.1 In an effort to quantify the naisc level from an .I �turbine were made on June 11 and 12 ZOQI at the B ' several measurements ' power facto urz is located 80 feet burn the facto ��mound r1'• The wind turbine mounted on a 42-foot tall tower, ���other buildings within y ale The turbine is The turbine is 1 ,ocated near a small airport,and there are within%:mile. The bacicgtnupd noise levels ran roads aircraft takeoffs the bac �° dBa to 57 dBa UMg ��noise were bugher naemurements were not made until the , noise on the sound level meter; however,et the mJfthighest�out nd sofrangpeeds it. A�d screen was used very effective. The wind turbine produces the most ittoise dinrc d bzing only slightly Quieter. To the sides and directlyo�erne'ttitthe�re79uputind dittctioo All measurements e'en made 42 foot dowmvind of tiie tower �'little noise. be the noisiest: This location appeared to Two curb»ie conditions were teste operation the wind turbine d,normal operation, and unloaded. In unloaded is allowed to spin freely. To conduct the tests, the turbine was run in the'condition indicated, and theta rapidly shut down to note the Bringing the turbine to a complete stop takes about 2 seconds,so that the noise level levels can be checked accurately. ambient noise winds Data rarer, Background Noisc Normal Operation (NH) Level(dlBa) Noise Level(dBa) Unloaded Noise 10 48 I-eve] (Ma) l • 17 48 51 - .2 43 48-49 18 47 54-56 48 17- 0 50 20 -53 0 18-24 5 -53 56-59 5-2'7 SQ-57 SS- 56-60 Conclusions; Under normaloperation the XL.1 was found to be approximately 3-4 dBa above the ambient noisese 42 feet from the base of the tower. Unloaded operation was found to he 6-7 the wind turbine is d8a above the ambient poise level,however noise levels rise and areto bet wind speeds in 1.5 dBa abov excess of 28 levelsmph(not tested)the The XL,l should not be operated unloaded if noise is a concenrn. This irequires as a S vc installation of an optional dump load circuit. -4-2078 i� P. 4 8ERGEY WINDPOWIIa_,_,ej PAGE 02 Test equipment: XL.i mounted on BWC 42 foot tower. The sound level teeter used was a B&K checked against Radio Shack#33-205o and 2 found last within 6-9s,calibration #33-378 Acoustic Foam and found to be witbizt l dBa. A to a minimum, This windsie topl�one Windscreen had to be used to keep t�tutd no noise, have no influence on the SLMreading.,checked with a steady noise source anemometer at a Wind speed measuzement w and foetid to h�8�of 60 foot, as from a Maxim 40 Sparely, Tod HaNey 4� Engineer Bergey Windpower Co. i . ,I Aso- c -96 /y y''7l?vO L_s61/ nl �8 S fi o O Cf G S� 1�C� o L Tv 6 -z -/7/ tyb 0 DNI 7 - �o ' -T f APR-03-2'003 09 :08 PM TSOUMPAS 212 717 8407 P. 01 n r i 1 �� •o ss�, 3 0& 4 John and Eleutheria Tsoum a Pas, \� RE 535 Manhasset Woods Road CE�VE� Manhasset NY 11 030 APR - .2003 Tel: 516.627.1326 fax: 516.365.0136 YON1Na soAi�n cv �ppC-A LS April 4, 2003 :. Southhold Town Board of Appeals Lydia A. Tortora,Chairwoman RE. Madeline Droop#5186 Dear Lydia A.Tortora, We are writing to you in reference to the above listed variance request. We would like to inform you that we shmna�-mbiect to the appeal For the granting of the variance. We strongly Obied to the construction of any wind turbine at US Petty's Bight, Orient, New York. Since we are unable to be present at the town hall for any variance meeting we have sent this letter in our place. Should you require us for any further information please contact us at the telephone number listed in the letterhead. eince,er J ' Ellie Tsoumpas APR ! 7 2003 NOTICE OF PUBLIC HEARING ZGNIN THURSDAY, APRIL 17, 2003 a is? RO°F gaPFgts SOUTHOLD TOWN BOARD OF APPEALS NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall„ 53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959, on Thursday, April 17, 2003, at the time noted below (or as soon thereafter as possible): 2:15 p.m. Madeline Droege #5186. Request for a Variance under Sections 100-33C, 100-30A.4, 100-31 C, based on the Building Department's April 26, 2002 Notice of Disapproval stating that the proposed structure is not a permitted use, and that it does not meet the code's height limitation or minimum setback provisions. Applicant proposes an accessory wind turbine structure at less than 50 feet from the front property line and at a height greater than the code limitation of 18 feet, at 885 Petty's Drive, Orient; Parcel 1000-14.-2-24. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than designated above. Files are available for review during regular business hours. If you have questions, please do not hesitate to call (631) 765-1809. Dated: March 24, 2003. Lydia A. Tortora, Chairwoman Board of Appeals C-2 o 001 Al ZZ ill iT Ju W a 4 C -N- "•2 ul � � t..to M�/ yyta . ]T�F tiJ tsu<i s,tc rm 1'+ lu s.a4c1 w �uln <� _ 65 t' ias p A• vs �p,60 'r >n lSLM'O >�w � .�s T� f•' 1 Sig M wNi oyp.•CT 1.91fa l.•'^� bJ �'< Y� R�y� u r Q lII try S • i.Wa 2f-1 y 1. Y � R a ►u'o c >� r �r4a wt ea.M FOR ra...w, cu va.,w. ]Z 9! 7� D� iEE 7rEL IQ 9FE QC w. fFL'Ut w OL Sf la iZ C on. —01f-@-013 OS)N-Olol tlPtlsOJ.t u IY a � - >u cc In Cgs s'ra sec w.ou �1 s. Is u 17.1 n SR 25 { ... w --_ -_ ••..••,w--_•-- ,^� NOTICE C COUNT SUFFOLK i >me p sEcraN No . —�— m> ,• Oz - _ .-...:-. -- .� 4w,o.� <,a x=�a Real Property & Service Agency r /tj ____-- . raffia •4R osmoria a ee Ntfefi 6 M Canty tenter Welh.(4 NY 11901 wle¢c 01—1 e. -• a _—_— r•e�Iw =—a— tea.•w u--a_— 4 fvr41 NMT fIa 6 I�feim •• raslva A �p Iwo • rww• a ta•,—ar_— YeuQ •IIIM Rflt)t/p!>Dal 6 M $W M 14L —_ - P PROPER"�+ILI 4a x SLta a^ �� •- r� aw —__— --a-- R4 rlp<IItT lef @TQ 1<CST. ' asentsn wle e.a n v» ' - KEEGAN & KEEGAN, L L r �G'F� ATTORNEYS AT LAW APR 147 NORTH OCEAN Aw-NUF 7 2003 P O Box 918 THOMAS J KEEGAN, JR. PATCIIO(71je,NEW YORK 1 1.772-09 1 8 ?ON�NG LA 9l9r• DEBRA A B TELEPHONE (631) 475-9400 315 WESTPHAL ALS llANIEANLEL C ROSS OSS FACSIMILE(631)475-0601 P O Box 146 MATrrrUCK,New YORK. 1 1 952-0 1 46 JAMtE ROSNE (631) 298-1200 I2. (631)298-4427 FAX THOMAS .I KEEGAN March 28, 2003 RETIREI) Lime Oak-Oak Beach Corp. (SCTM: 1000/14/2/22) c/o M. Droege PO Box 162 ,.. John.&Eleutherta Tsoumpas (SCTM: 1000/14/2/23) 53.5 Manhasset Woods Road Malihasset, NY 11030 George & Irene M:allis (SCTM: 1000/14/2/25) c/o Eva Mal.lis PO Box 716 Harrison, NY 1.0528 Re: Application of Madeline Droege#5186 885 Petty's Bight, Orient, New York SCTM: 1000/14/2/24 ZBA Hearing scheduled for April 17, 2003 To the above-referenced parties: We have been.retained by Madeline Droege to appeal the Building Department's denial of ta:l) r171iJ'10100'rAt:^" t.,,a.Wind tufnino at'885 Pelty's Bight, Orient, NY. 'Eticllefsai.s a legtil tlotice of a pu1;li.c:licariug scheduled for Thursday, April 17, 2003 at 2:15 pin re same. Also enclosed is a map showing the proposed location of the windmill.. Very truly yours, Daniel C. Ross DC R.•k:r enclosures/delta/townidra ge-not.]tr 1 ZONING BOARD OF APPEALS Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 (631) 765-1809 (631) 765-9064 FAX Email: Linda.KowalskiCcDTown.Southold.ny.us Paula.Quintieri(a)Town.Southold.ny.us Jessica.Boger@Town.Southold.ny.us hftp://southoldtown.northfork.net TO: Dan Ross, Esq. FAX #: 298-4427 DATE: 4/11/03 PAGES: 5 to follow HEARING: 4/17/03 APPL OF: DROEGE RE: Letter of opposition - Tsoumpas TRANSMISSION VERIFICATION REPOF,7'- TIME 04/11/2003 10: 39 DATE J I ME 04/11 10:3 5 FAX NO. /NAME 2984427 DURATION 00:04:03 PAGE(S) 06 RESULT OK MODE STANDARD ■ Complete ite ss-W,2,a43.IAIso completes I ! }Py Received byl(Please Nml kleldy) B!Date of Delivery item 4 if.Restricted Delivery is desired. r 3 3 ■ Print your name and address on the reverse so that we can return the card to you. C. Signature ■ Attach this card to the back of the mailpiece, X Agent or on the front if space permits. ❑Addressee e ivery address differs m item 1? ❑Yes 1 Article Addressed to: ��, If YES,enteraddress below: ❑ No Loh.e oak-OaK �o M, bra �oBoxi � a— - ,G l 7 3,�rvice Type -- Certified Mail ❑ Express Mail q7e u rf c, ❑ Registered 'V Return Receipt e ❑ Insured Mail ❑C.O.D. 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service label) t , F.grm 381.1,."July-!A§§ 'DomesticEBeturn Receipt 102595-99-M-17e9 _ irnr,�(r((11 111 First-Class �'I�ii'.r1'Iill11 r,t 1 11 'r�ll Ilk fit�. r 7 :P<•^ •[ UNITED STATES PAYTAL JERV�CE { 1 {1 Mail Postage&Fees Paid USPS - Permit No. G-10 • Sender: Please print your name, address, and ZIP+4 in this box • D/ A'Oil-1 - TebV5/ ,315`y��S�P� �o �3ax 7,yLa 7Y&ta e, i SENDER: COMPLETE THIS SECTION COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. C. Signatu 2 ■ Attach this card to the back of the mailpiece, XW40 9 Agent or on the front if space permits. ddressee D. Is deliveryaddress diff n Item 17 ❑ s 1 Article Addressed to: A ry If YES,enter delive ress b o �rt}3. Service Type Certified Mail 0 Express Mail RQ" , / ❑ Registered Return Receipt ❑ Insured Mail ❑C.O.D. - 4 Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service label) ?boa COO( PS Form 3811,July;1999 Domestic Return Receipt 102595-99-M-17e9 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this boxap • , 1 pa pox COMPLETE THIS SECTION ON DELIVERY ■ Complete items 1,2,and 3.Also complete A. Received by(Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is'desired. JA ■ Print your name and address on the reverse so that we can return the card to you. C. re ■ Attach this card to the back of the mailpiece, X �if b fi P gent or on the front if space permits. - ❑Addressee F D. Is delivery address different from item 1? ❑4Yes 1 Article Addressed to: If YES,enter,delivery address below, ❑ No �Qh{� a4d eleu AQY/a--TSoLjm pas 53 5 /?')A��1AS'Sef Wood,5 RJ . D gL,i vagd , 03 l4.L / 3.uService Type /�!Certified Mail ❑ Express Mail RQ 0�'-54*- ❑ Registered .WReturn Receipt ❑ Insured Mail ❑C.O.D. 4. Restricted Delivery?(Extra Fee) ❑Yes 2. Article Number(Copy from service labeo 1001 03.-)-a 0005 k713 3oYd PS Form 3811,July 1999 Domestic Return Receipt 102595.99-M-1799 UNITED STATES POSTAL SERVICE First-Class Mail Postage&Fees Paid USPS Permit No.G-10 • Sender: Please print your name, address, and ZIP+4 in this box • .3/5 G(J.eS�fp Gt � f�✓ � REDEI�ED ZONING BOARD OF APPEALS TOWN OF SOUTHOLD, STATE OF NEW YORK APR - 9 2003 -------------------------------------.-------------------------x ZONING BOARD OF APPEALS In the Matter of the Application of MADELINE DROEGE #5186 AFFIDAVIT OF SCTM Parcel#1000-14-2-24 MAILINGS ---------------------------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) ss: I, Daniel C. Ross residing at 1450 Woodcliff Drive, Mattituck, New York 11952, being duly sworn, depose and say that: On the 29'day of March, 2003, I personally mailed at the United States Post Office in Mattituck, New York, by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true copy of the attached Legal Notice in prepaid envelopes addressed to current owners shown on the current assessment roll verified from the official records on file with the Assessor's Office in Southold, for every property which abuts and is across a v e street, or vehicular right-of-way of record, surrounding the applicant's pro rty. IANAL'C. ROSS Sworn to before me this day of April, 2003 �/ Notary Public, State of New York. �'�" No. 4877106 Notary Public Qualified in Suffolk County Commission Expires Nov 24,r9fb0.>;v PLEASE list, on the back of this�Affidavit or on a sheet of paper, the lot numbers next to the owner names and addresses for which notices were mailed. r,A.. CERTIFIED MAIL RE&E113-. (Domestic Mail Only;No Insrrance Coverage ru M -I- C:' E US M ostage, $ 0.37 UNIT ID:, 0952 Mi 11.30 Postmark Ret elpt Fee Here Ln (Endorse equfred) .75 C3 C3 Restricted P1iG a Clerk: KVD8KJ C3 (Enclorsemen C3 Total Postage&Fees $ 4.42 03/29/03 ru rrl Sant To C3 n -riout, a �To ........................................................p---------------------- Street,Apt.No., C3 or PO Box No,5. 3 5mahlin5s.,4 wood-5-,-R-d- ----------------------------------------------------------------------------------------------- C3 City State,Z1P+ki+',-s-Cfj Afy /1030 IDT& U.S. Postal ServiceTM CERTIFIED MAILTM RECEIPT (Domestic Mail Only;'No Insurance Coverage Pra_.ed) For delivery information visit our website at www.usps.come ii ¢} l i"' i._. i i.�j }._ PS Form 3800,June 2002 v See Reverse for.Ins1 l""— t U.S. Postal Service,. o 0 CERTIFIED MAILTM RECEIPT (Domestic Mail Only;nNo Insurance Coverage Ph-_,Jed) For delivery information visit our website at www.usps.corna PS Form 3800,June 2002 See Reverse for Instructions KEEGA N & KEEGA N, L L P ATTORNEYS AT LAW 147 NORTH OCEAN AVENUE P.O.Box 918 PATCHOGUE,NEW YORK 1 1 772-091 8 THOMAS l KEEGAN,JR. - EASTENDOFFICE ZEBRA A. BYRNES TELEPHONE (631) 475-9400 315 WESTPHALIA ROAD DANIEL C ROSS FACSIMILE(631)475-0601 P.O Box 146 MATTITUCK,NEW YORK 1 1952-0146 ******************** (631) 298-1200 IAMIE ROSNER (631)298-4427 FAX THOMAS 1 KEEGAN March 28, 2003 RETIRED Lone Oak-Oak Beach Corp. g �.�,�'�'�,.�.' n. Z) c/o M. Droege APR PO Box 162 9 2003 Orient, NY 11957 John &Eleutheria Tsoump + <<' �1+000%1412I23�` 535 Manhasset Woods Road Manhasset, NY 11030 George & Irene Mallis Ski c/o Eva Mallis PO Box 716 Harrison, NY 10528 Re: Application of Madeline Droege#5186 885 Petty's Bight, Orient, New York SCTM: 1000/14/2/24 , ZBA Hearing scheduled for April 17, 2003 To the above-referenced parties: We have been retained by Madeline Droege to appeal the Building Department's denial of a permit to construct a wind turbine at 885 Petty's Bight, Orient, NY. Enclosed is a legal notice of a public hearing scheduled for Thursday, April 17, 2003 at 2:15 pm re same. Also enclosed is a map showing the proposed location of the windmill. Very truly yours, Daniel C. Ross DCR:kr enclosures/data/toWn/droegenoLltr y `I f NOTICE OF PUBLIC HEARING THURSDAY, APRIL 17, 2003 SOUTHOLD TOWN BOARD OF APPEALS NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, ,53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959, on Thursday, April 17, 2003, at the time noted below (or as soon thereafter as possible): 2:15 p.m. Madeline Droege #5186. Request for a Variance under Sections 100-33C, 100-30A.4, 100-31 C, based on the Building Department's April 26, 2002 Notice of Disapproval stating that , the proposed structure is not a permitted use, and that it does not meet the code's height limitation or minimum setback provisions. Applicant proposes an accessory wind turbine structure at less than 50 feet from the front property line and at a height greater than the code limitation of 18 feet, at 885 Petty's Drive, Orient; Parcel 1000-1.4.-2-24. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing, will not start earlier than designated above. Files are available for review during regular business hours. If you have questions, please do.not hesitate to call (631) 765-1809. Dated: March 24, 2003. Lydia A. Tortora, Chairwoman Board of Appeals L!a)y Y F / P.D.65 ' l —N— _ La4J w cl '� VO•A LURI la � � r,9• 1.7ad y� w lU u uud lu L 1U LL1d 41Yd LI} ua . u Lw.+ lia �4 Lu aaud � uu� t� in 1L1 LLmd 4 LU La w La j 5 _ xx uarc ILa1 1;� ISLAND SO"La L. is I L>� o� La Ls1w 4 ta1 n LLlcl NJ w 1y Y,1 I uud . 2 O1T at3L1 1 u 11 n to m I . Laud � NAII u zA ni laa 41Yd 0.D VAN lard P / ..� fi°� Sm L b rq KL In fta to \/V\ p}�L $a 4CM M at KL NG W � _ Ua 1L i 4!sC[.1D.ti u VA ZS 47 1I.W�nr� 1211 a..ur O — ....«.. -- NOTICE COUNT -- -- w—..—_ �,.�.iP r Ill. .�.. ---- — -- .....__.-- •... Turn,lna.ra�1rf OI RR,L1 wn �y •� --.-- "",.-�..,.—...—_ ."' awl araL .rr ra. .. �ReCd Property SerV�SOAK E O SOl17HQD SECTgN NO Cmnry C.nrr ql gen y T �arnby.N 1 11f01 was - aK.. 014 P mn°i a 1000 PROPER FROM , -7r Al"t l _Y_ ;`EEGAN & KEEGAN, L L P- ATTORNEYS AT LAW 147 NORTH OCEAN AVENUE P O Box 918 THOMAS J. KEEGAN,JR. PATCHOGUE,NEW YORK 11772-0918 EASTENDOFFICE DEBRA A. BYRNES TELERHONE�(631) 475-9400 315 WESTPHALIA ROAD DANIEL C. ROSS _EACSWff'E1(611')475-0601 � P O.Box 146 MATTITUCK,NEW YORK 11952-0146 (631) 298-1200 JAMIE ROSNER OCT — 8 P ( !i s (631)298-4427 FAX THOMAS J KEEGAN _ T 'October 7, 2002 RETIRED ---' To Fax#765-1823 and regular mail Office of Zoning Board of Appeals Town of Southold 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Attention: Linda Kowalski Re: Hearing Scheduled for October 17, 2002 - Droege Dear Ms. Kowalski: This letter is to cancel the hearing scheduled for October 17, 2002 with reference to my client, Madeline Droege'.§, application for a variance for a windmill to be erected-on her property in.Orient, New York. I will be out of town•on the scheduled hearing date. I would very much appreciate it if the hearing on this matter could be rescheduled for November, 2002. Thanking you in advance, I am, **61C. DCR:kr cc: Madeline Droege ZONING BOARD OF APPEA. �� , Town Hall Office l ✓ 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Lin da.Kowalski cDjown.Southold.ny.us or Paula.Ouintieri(a-Town.South old.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: /2002 REF: Hearing Date: /O//7 Appl. of T• ire-Q�.2� -ao�•`o ( x ) Info attached for your information and review. z Thank you. Pages attached: . 10/14/2002 12:47 6313231270 INDEPENDENT AERIALS PAGE 01 ' ` E r� OM 14 2002 ' OCI 1 5 j2 I t chael Nancy Rand 12 Bight Road L Lc i Orient,N.Y. 11957 I Gerald D. Goehringer,Chaiim Lydia A. Tortora, George Ruth D. Oliva, Vincent Orl Town Of Southold Zoning Board Of Appeals 53095 Main Road, PO Box 1119 Southold, NY 11971-0959 ' a i Fax#631-765-9064 a Dear Board Members, I I am writing this left w you in regards to a Ms. 1?roegq applicat on fora I uilding variance. It is variance 41 51 6, of#14-2-24, 885 Petty's Drive. Ier origi 1 buildin I permit for the erection of a wind turbi mas disapproved on 4/26/02. My neighbor, Ms. Te, , wishes to er a wind turbine On her perty ! than 50 feet from her front property She states in er application that she to p ce electricity for use in her o that the t ine is a small stricture, is at+ely vi ble from a distance, and will be hardly hable from t neighboring properties.It ve seve Al concerns and reasons as to why this stiuc ture should not aflowed in our+wtnm First of all, the turb' ' *11 hardly be s all. It wilt stand 04 feet, have r r blades of 87' long. This is more t 3 'mes the heigh the code permits.: Where . Dr wishes to place the structure, will be t ly be highly ible to many of her neigfi 1 4 but '11 also pose a severe safety issue. This f issue is one my main concerns. She i ,proposi to place d 64' electricity producing st e, 33' from h front property line. She rakes no ntion as to where the structure relates to h side property ine Where is sh@ allowi for a fall zone? If this structure should came d during a Nort t storm or hurricane, which this-a is prone to, her turbine will most like�y se damage tc the surrounding area and-live the p Aential of sending 8' rotors directly at �y house or any o my neighbors hotnes. Abo,.accor ' to the ,Notice Of(Disapproval, h win i Section -3 i i Secondly, is the factor property dev uation. Every lot.owner a4d memb of our community has invested su ial amounts a money into their homes. *ith the ilding of a wind turbine in a residential one borhood, all f our property values wou m take a t. Who would want to buy or build i t a community wi such a dangerous structurO in p i � U i 10/14/2002 12:47 6313231270 INDEPENDENT AERIALS PAGE 02 I I i Thirdly, there are pri res and p is.that Ms. Dro*Was follow p ' r to her Board of Appeals review. were to be t to all of her neighborq t abutt her property. To my knowledg , such notices ere sent. Also, least 7 Or prior her review, signs were to be posted in a r mineat and via' le location, no ' ing het �urroundi neighbors of the pending hearing. No signs were ted. Ms. Droeg is in cl violatio of the correct Application Arced e. I s Lastly, but not of leakt ' portance, is t environmental impact tlol this wiq turbine would have. My husband a value enormo ly the natural beauty, scalc views, d quiet that this area and community o . It is the main r n that we lov�this arojand our ighborhood so much. This electricity-p icing machine ould destroy all I that. It wwould t away the natural beauty of our land, d y our beauti views, and shatter the p0ge and qu et of our neighborhood. In conclusion, due td all of the above s ted reasons; saf cone* pro devaluation, violation of pr procedures, an environmental i ipact, I�spectfull request that you deign Ms. Droeges V ' Application, r� CG , n n Il�ll Thank-you, OCT 1 5 I Mrs. Nancy nd I I i I �6 i 2 l 01/22,/1995 03: 07 6313231315 SEMON PERSONAL PAGE 01 -, .G a October 14, 2002 �6i9= Via Facsimile: 763-9064 Gerald D. Goehringer, Chairman Lydia A. Tortora, George Horning Ruth D. Oliva, Vincent Orlando Town Of Southold Zoning Board Of Appeals 33093 Main Road, PO Box 1179 Southold, NY 11971-0959 Dear Mr. Goehringer & Board Members, In the October 3, 2002 issue of the Suffolk Times, there is a request by Madaline Droege for a variance under Sections 100-33C, 100-30A.4 and 100-31C based on the Building Department' s 4/26/02 disapproval for a wind turbine structure. I am writing this letter because I have several concerns with having an accessory structure of this nature in our community. This type structure will definitely affect the wildlife in our area. It is known that these type structures injure and kill birds. What about the noise pollution? Will I have to keep my windows closed to keep from hearing the droning noise and not be able to breathe the fresh air every day? And what about the pure unsightliness of this structure sticking up in the air more than double our rooftops? Every resident will undoubtedly we this structure from his or her homes. Another big concern is safety. Where in the appeal application has the fall zone information been provided? If the--structure tower fails, it will most likely cause damage to the surrounding area and the environment. This is a small residential community in a conforming R40 zone. When the Town Planning Board created the subdivison it approved 17 plus/minus 40,000 square foot lots. Certainly wind turbine accessory structures were not part of the approved subdivision. Every lot owner and member of our community has a vested interest in the quality of life as well as a financial stake In their properties. If any property owner decides to sell their property, this structure will definitely be a detriment., Article III, Section 100-33C states waterfront parcels are permitted to have accessory buildings or structures in the front yard providing that they maintain the principle setback. The code dictates a 30' front yard minimum and the applicant proposes a 33' distance. All the developed lots currently maintain and exceed the minimum front yard setbacks, which adds value and appeal to our development. Nowhere in the proposed application are the tie wires addressed. The specifications are vague. Will the de wire stake placement be on the property lines? 01/22/1995 03:07 6313231315 SEMON PERSONAL PAGE 03 f Page 2 f �� October 14, 2002 I ' OCT 1 5, J2 Town of Southold Zoning Board of Appeals °__ ll� Article I11A. Section 100-30.A.4 states accessory buildings are subject to the Agricultural Conservation District, which states structures or other accessory uses shall be located in the rear yard and shall not be higher than 18 Feet. The proposed structure will be 64' with an 8'-2"propeller. If approved this structure will be .more then three (3)times the height the code permits. Article ILIA, Section 100-31. C states an accessory wind turbine is not it permitted use in the zoning. How could the Zoning Board allow Ms. Droege to use this structure to produce electricity? Based on the property sizes in High Density R-40 areas this is not a permitted use and really should not be approved based on the property sizes. Based on additional research on Ms. Droege's parcel,the house was built with relief granted from the Zoning Board under appeal number 3849. All building located on lots adjacent to the Long Island Sound with a bluff be set back not less than 100 feet from the top of the bluff. T'he zoning Board granted relief with a 60 foot set back from the bluff with conditions for no other structures. The house was built and used most of the building envelope. To grant any other relief to this property would seem to be unfair to all other property owners. By view the house over powers the community. Our family moved to Orient to enjoy the peace and beauty of the area. By no means will this structure benefit the community nor add beauty. This structure will undoubtedly have long term unknown effects on our environment and its residents. This appeal application should not be entertained, and certainly denied. Sincerely, ��c,lGct Felice Semon 730 Bight Road Orient, NY 11937 Z�I Z ZONING BOARD OF APPEA �. Town Hall Office 53095 Main Road l P.O. Box 1179 Southold, NY 11971-0959 Email: Linda Kowalski(a),Town.Southold.ny.us or Paula.Ouintieri(aUown.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: /0 l U' /2002 REF: Hearing Dater Appl. of e. ( x ) Info attached for your information and review. � S i Thank you. Pages attached: Mr. and Mrs. Dino Demetriades 400 Petty's Drive Orient, NY 11957 Oct. OWE 1 8, 2002 11 OCT - 8 )2 —.1 Mr. Jeny Goehringer , ` X Re: Wind Turbine Variance, 885 Petty's Drive, Orient, NY Dear Mr. Jerry Goehringer: This is to inform you that we are in opposition, to the wind turbine structure at 885 Petty's Drive in Orient, NY. As everyone knows the winds are very strong and this will cause danger to the people around. In addition, it will be very noisy. Please understand that we value the quietude of our neighborhood very much. Furthermore, the wind turbine will be an eye sore. It is inappropriate for this area, as it will afTect our quality of life, safety and the ascetics of the.neighborhood. Thank you in advance for your consideration in this matter Very truly yopp, , Dino and Despina Demetriades T002 eapBT.[1amaa ZDSL PTL ZCL Ydd ZU ST NOW ZO%OCi60 1\ Mrs. Roxanne Kassapidis Petty's Drive Orient, NY 11957 OCT Oct. 8,2002 Mr. Jerry Goehringer Re: Wind Turbine Variance, 885 Petty's Drive, Orient, NY Dear Mr, Jerry Goehringer.. This is to inform you that I am in opposition to the wind turbine structure at 885 Petty's Drive in Orient, NY, As everyone knows the winds are very strong and this will cause danger to the people around. In addition, it will be very noisy. Please understand that I value the quietude of our neighborhood very much. Furthermore, the wind turbine wi11 be an eye sore. It is inappropriate for this area, as it will affect my quality of life, safet and the ascetics of the neighborhood. y Thank you in advance for your consideration in this?natter. V ry truly yours, Roxanne Kassapidis Z00@] SaPeTalamea ZtCL tIL UL XVJ ST:£T KOW Z0:0�%6u ZONING BOARD OF APPEAL °l Town Hall Office 53095 Main Road P.O. Box 1179 Southold, NY]]9 71-0959 Email: Linda.Kowalski(a,Town.Southold.ny.us or Paula.Ouintieri(a,Town.Southold.ny.us http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064) TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: l0 / 7 /2002 REF: Hearing Date: /0 / 17/ 490 Appl. of ( x ) Info attached for your infonnation and review. Gt.Q.L Gt�- /d Q,�►Gl�i 3 Thank you. Pages attached: ZONING BOARD Of PPEALS ' Town Hall Oiiice 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Lin da.KowalskigTown.Southold.ny.us or Paula.Ouintieri(ajown.South old.ny.us, http://southoldtown.northfork.net (631) 765-1809 fax (631) 765-1823 (alt. 9064; TRANSMITTAL To: Jerry, Lydia, George, Ruth, and Vincent DATE: l0 / 7 /2002 REF: Hearing Date: �0/ 121102 Appl. of /G ( x ) Info attached for your information and review. Gt.Q�G� /d Q-,itG1C� a-1 �� 3 Thank you. Pages attached: PtROSS@REEGAN&KEEGAN FAX NO. : 2984427 7ct. 07 2002 11:38AM P1 KEEGAN & KEEGAN,, L L P ATTORNEYS AT LAW 147 NORTH Ql7AN AVENUE P.O Box 919 PATClroauL•.Ntw YORK 1 1 772-09 1 8 THOMAS J. KEEGAN,JR. �()'�� -DEBRA A. )3Y.RNkS , 'C ',�TEGFPT30NF (�31) 475-9400 315 wEzrvnA>rn ROAD r~ �� ! �-- P.O.Box 146 DANIEL C.ROSS / \\c f�FAC§101LE-(63.1.)475-0601 Mnrnrur.K,New YoRK 11952.0146 (631) 298-1200 JAMIE ROSNER l OCT (631)298.4427 Fax ########t#t##*#**swap �` ✓� /! / THOMAS J. KEEGAN October 7, 2002 RETIRED �-. To Fax#765-1823 and regular mail Office of Zoning Board of Appeals Town of Southold 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Attention: Linda Kowalski Re: Hearing Scheduled for October 17, 2002 - Droege Dear Ms. Kowalski: This letter is to cancel the hearing scheduled for October 17, 2002 with reference to my client,Madeline Droege's, application for a variance for a windmill to be erected on her property in Orient, New York. I will be out of town on the scheduled hearing date. I would very much appreciate it if the hear on this matter could be rescheduled for November, 2002. Thanking you in advance, I am, *'elC. DCR:kr cc: Madeline Droege DCROcStD EEGANBKEEGAN FAX NO. 2984427 '7ct. 03 2002 12:59PM P1 r~ OCT ^ 3 )2 Keegan &Keegan, L.L.P. Attorneys at Law _� ���� 315 Westphalia Avenue ---_.. /dL i P.O. Box 146 _9 Mattituck New York 11952-0146 Thomas J. Keegan,Jr. 631-298-1200 Debra A.Byrnes Fax: 631-298-4427 Daniel C. Ross FAX COVER SHEET DATE: October 3, 2002 TO: Linda Kowalski/Paula Quintieri - Town of Southold ZBA FAX#: 765-1823 FROM: Dan Ross, Esq./Karen FAX#: 298-4427 or phone#298-1200 RE: DROEGE HEARING SCHEDULED FOR 10/17/02 COMMENTS: Dan is not able to attend the ZBA hearing on 10/17/02. Please advise on procedure for adjournment? Should the mailing and posting still take place now or should we wait for a new hearing date and do the mailing and posting at that time? Dan spoke to you about this adjournment over the phone recently but he was not clear on the outcome of your conversation with him. Thanks very much. TOTAL NO. OF PAGES INCLUDING COVER SHEET: 1 04 �S . -e. . IL /it -A IN C, -Polo D�� r II F / zz Ile_ A r:- Y/O 177-7-1 rn �11 1 , _ - I'^ 3,1x r`Y�,. �E1• N" www be a com • a� - -- _ ^;O,x"�;:r'�,;.n', '? _._ ......._ Aaisrka. ADCY.r-- - —- -- —-- WN a .A•. 1 _ - - I,- - _.-x.r �- r.•5°•7xz.. 'ai �;,r ,e. r ��� ..+�e,�' � s^S •W:''.%4 is- - - - ti. J';�,' r�. :F �Y' ,� y`!t='i;'' �� y rr•:;• i• _ _ ay. EE it rt t )� C'''4.}, .`Kl•:.r. S. ,'F ".usal� � �.. .'i�,�.., nyar' .cL�� Lzy!•n.A'4tS 3 �a 'fir,'n "tr a�Y�=' •�,�'• .n• _" - \\_ " 3 - r - r - e r, - F. YEAR WARRANTY l �r t'r` MAINTENANCE FREE DESIGN NEARLY SILENT OPERATION "' EXCELLENT LOW WIND PERFORMANCE. AUTOFURL AUTOMATIC STORM PROTECTION STATE OF-THE-ART AIRFOIL(PAT. PENDING) p DIRECT DRIVE NEODYMIUM PM ALTERNATOR POWERCENTER MULTI-FUNCTION CONTROLLER BATTERY-FRIENDLY OPTICHARGE REGULATION OPTIONAL INTEGRATED 500 W SINE INVERTER 24 col[ [lette(y CiDrgiiigl,'L;' ; _ x '-:=.� t"I- COMPLETE TUBULAR TILT-UP TOWERS AVAILABLE 1120;Vo16;;:6,0,1jp�1C(OnG�o11a.1) ,..; r t 230,VoIti;;50'Nz?AGZ{}Oj�tf-'oat - COMPLETE PLUG AND PLAY SYSTEMS AVAILABLE � •:('of1=p-,rid use�only)) - - _- ` The Bergey.XL.1 is the most technically advanced. small wind turbine ever. It comes from the world's 'T leading manufacturer of small wirid'turbines and Is '=3 Deee,y ltonk siaa a backed by a full 5-year warranty. The XL.1 wind 3,aroms,mu. 1 All-Inclusive Tilt=up.Tower turbine is designed for high reliability,low main- ;` tenance,and automatic operation in adverse Kits Available: weather conditions.And the*XLA's"alHn-one' 30 ft(9 m) PowerCenter provides complete hybrid system 43 ft(13 m)rp • tZ4 ft(20 m) q9(, integration,including an optional on-board-sine 84 ft(28 m) wave inverter. Owner installations are a snap ; ! 104 ft(32 m) with Tilt=up Tower options from 30-104 ft f fly ' Easy to install,extremely reliable,and a-solid value, WINDPoWER 6leClT,XL.1 the Bergey XL.1 Is the clear choice for your home :,,._ 7, +. energy system. BWC'XL1 Po erCen ' r Controller • 36 ft Till=up Tower,with '9 KMOe4e_v NovtmiG PAR s.ARE THE''PARTS-YOU ''M0VW G optional 200.w solar Array Perfor nce Predicted Energy Production (z1 m) I Speed ..6.7 mph(3'm/e Wind:Speeds T2ken:at'To of Touter Slant u 61d I l cut d Ind Speed...5.6 mph(2.5 mte) Nan Avofnao wind Speed(m/a) 7!f 4 .49 s s9 6 a9 ti2 ft(25 m) I u PoweI 1,000 Wade Annul Avers o wind S iad:i h )D 09' F0.1 Ill 123 13 p3 Rotor Diameter �(\ ted Wind Speed'.. 24.8'mph(11 Me) tPiadacrion Boa t9. ID_ 39 5.1 UA T7 09 f - :Iri Ss e5, 115. 155, te5 235 270 Rated Rotor.Speed_.490 RPM . FurUng WhW Speed.-.29 mph(.13 m/a) , _a�oi,1 ceo'. tAto Uto uaeo 23m 7 32so —! Max.Design,wind'speee-12b mph(54 m/3), Wind S eeds Talien of".10 meters' er standard wind resourre s 'um US-DOEWIitdPowwrCl"'•`"1• -2 9. 4, 6: '(f' 7 s _ - m .Mnual'AwnOa Wlrid SpnA Not Weight 75 be(34 go).. W — rliinual Avers .wind s ed 4D••• -4A -SA -S.o -02• A:1R "�.,o - �]O,n(9mm) Oal Ze. .4Jr SA OD 7D. 9,1• -127 Shipping Wofght 95 Ib3'(43 kgn) (L25 m) -'t— p PraJutllan ..Tower '5 130; TIS 2117� 40 - ITS: -M. fo►wh s4ncmni .- _.Oa 4.1 SAI 02 A34 sa4 -., , •147• ,r;, R�vu4 -Tower- don tas. toS 250 zo5: ]DD 3ss•. d45 J V II w lot n Q2m) t'.Cf _-Tower. °! n ,-. tom` .733' 293 D0' 356 :�' ,aawmptbnc•Irda+d"a.Rayftgh Wed Did bn.6faer.E�errN n 0.20,Mivdd IOOOA p00n} r,;'"},,;>.,t k}� �A, 'd' • n ' '� Nod*.,Denary ehor0e rotphilen,pmirodos hlQ grid vAio run town WB ra6.1ta D W X1-1 Padormanu. ) 'dC+ (l,�J P• ,.a : YouiPsiformince May Vary: / � > �. Ded)er, 001'PRmarnEY•AVE _r ',...e- NOriMAN;:OK-7D089 7 4053844Zt2, F:-40)3064 i207B: ���y��, ent>38eeeRaer:cot�i �r� SIM[PLICITY'o'R6LIABIIJTYe PERFORMANCE vaiiivir:"iOWW r i�:tEGAN & KEEGAN, LLP ATTORNEYS AT LAW 147 NORTH OCEAN AVENUE P O Box 918 THOMAS J. KEEGAN,JR. PATCHOGUE,NEW YORK 1 1772-0918 EAST END OFFICE DEBRA A. BYRNES TELEPHONE (631) 475-9400 315 WESTPHALIA ROAD DANIEL C. ROSS FACSIMILE(631)475-0601 P O Box 146 MATTITUCK,NEW YORK 1 I952-0146 (631) 298-1200 r JAMIE ROSNER (631)298-4427 FAX June 24, 2002 r THOMAS 1 KEEGAN OF COUNSEL Southold Town Hall Zoning Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971 Attention: Ms. Linda Kowalski Re: Application e of Madeline Droe PP " g 885 Petty's Drive, Orient, New York SCTM: 1000/14/2/24 Dear Linda: Enclosed you will find a Zoning Board application appealing the Building Department's decision disapproving our client's application for a permit to construct a wind turbine on her 1 property in Orient. My office will be closed on Friday, July 26, 2002 through Friday, August 2, 2002 and also on Monday, August 19, 2002 through Friday, August 23, 2002. I would appreciate it if you would not schedule this matter to be heard before the Zoning Board of Appeals on those dates. Thank you for your consideration. V ry s, DCR:kr data i=IJdrmge-zba2.IEr .6:!'<p;r,>�M.'i` l.,SM��i-��'•.;;.Kiri;tl�'�°tx;1� .r«iV.�1Di,t 4 �e�. _ yt: -, P s f .t'• y,:}•�•r,.i.4� xQPM1,9 S.3:?_ 4: RFCDROED I I 32152 11775 `rU 158 sb Nkr 23,.All l l:07 } WraJaofpaycs ctn� EC.?i i D P.f(i.'i;aIHE 6 ,t TOWNS ' A ES7Ayr CLEnN'OF >` SUFF0LK COUNTY 4e w TR SUFFOLK �;�; ?; ,. .: UFf1.Y�,,,•;r' .. •4:•. !' ''-,: � ", •; =.�.i.,;,.. , sly Deed/.V a Instrument Cued/Slongage Tau Smmp Raording/Filing Sumps ='1 741 a,l Page/Filing;Fre Mongage Amt. .•. Frig Hurdling �7 ' ,t: — --- •I:•,'Bacic Tax ;. r! TP-584 I. AJditionW Tax *5 Notation Sub Ttiial (County) � / _ -r ,,i•t k� EA-5217( y) — Sub Tuul ,, `'•`:� •_ SpxlAcsit.' i�• _� r Fi►•5217 state ,� ;� c'.or (State) ` RP.TSAixrX Comm of.Ed. 5.00 , ict 'I ilTo�vn::,.r;t.Diralcounty r.i Held'forAppeutionment'• ' *` Affidavit CertifialCopy ^' Mansioti;Tax'r'' The property;oovcred.by'tltis,mongage.is or F` RegiCopy _ =i will(S&AinproJedibycapnet or;two family' i;- ti Sub TotalOdber _�� EwelGtig'aniy:;i'•r< ;:c"..,,,i '/j:3 r=. CRANDTUTAL ��. If N0;•s&jappropriate.ux cla on use page'w j} fi i of Ihis'insGurtieru'� `':t}. Real Propirty Tax Service Agency Verification. l6 t•' fle',CompanyInformation Mx;`I DisL Sectio�nl ;Block Lot- } wY v UV f,Co!Ttf y ^ 1)`Name. Title Number t 8; FEE PAIL)BY REGAL ABSTRACT"CORP. Cacti. C7ecia'`' "`Ctiargc "' 7` 5 HANOVER SQ.,(16TH Fl..) Payer same as '.&'•R' ,(or,if different) NEW YORK,NY 10004 NAME: (2!2)269.5960 A rtDRFSS: RECORD&RETURN TO 7i tADDRES.S) r s;, Suffolk,.'County ):Recordin .+,flidorseiiient Pa" e; Tl.'Page f—S part cr tltc attached made by f n (SPECIFY TYPE OF INSTRUM S L( ' `�^�? _._ The prcmiscs herein is situated in, {' SUFFOLKCOUNTk,P'F.WYOPX TO J( In the Township of`nQwl i :°,• In the VILLAf7E '• ;�:� ,.s.: or HAMLET of .' t' BUXFS5THRU9 MUST"BE TYPEDOR-PP.INiED;IN`B LACK-LNKONLY3PRI - ~I`GOR' GR;T O RECORD N FQiDVG: :i:,.•`�- --c"i•� ..' "�.:�+�.'c'4^,'''u?7�!•+Y,;P,.{ .j w� .L;et.,';e• 3Y�sr'..�w� ..�`+, ... ., .uaraawr..iC' ct:• `1x:a,'r, �(r,'',•^..:3a4:s"'Yt �!' 'Kt.'S'.>.`"'tt1+)1r<.�.»�Sr'.n .F �k' l �'� _��',:.�/� "L��'Ca'�Y;JNi.''-;:: �;•6} ':?5�;''+s'` "• �it[IrF'.f. �i�j's 4 T �'rr`_ n•',:*h'tia:';!="� :i).eF. • ...i:.-v..: . .4::i .',•...-:r�,�•;,'J*l:'i. � "'&].L:l�w:;i.�".:..1:i -_:.> .i- ': '"'µ Ni r�..... OOerfsap•wO,M/e , d>. 'M.eat.r.ey•eeW a.etw Orl'ew aerrrr G90rd1V�wt#�'•r.i;.,;.•M:7,:;.:�� _ ;L'�`„t 4' cwnmrvouis Avyw Tw postituotton=TlOaWbT1YJ►IWit/10tAD/tuffDeYhAYWtA6My. ••rya A, Tars Indenture,m.Jo the • 7 th day of „a7 nineteen hundred and Ninety Five =S '. Between CI?hill.! ER0MER5 RFALTY CORP. '- 175-16 Liberty ;venue ;E Jaraica,.New 1.rk 11433 ^pally of the him pan.and } MULL'.'E DRME p 179 Church Street I .ew York, New York 10013 y w+:y of the second pan, VVIerwaetl4 list tta party of the first part.in consider atiu+of Ten Dortars and other valuable considersOon paid by the party at the second port;does hereby grant and release unto the party of the second part;the fairs a weeeeswa .`'tl ,., and assigns of the pony of the-econd part foretra:, ;'. _ •.ti{ AA that cwnin ptot,fiieee a fAriel of Land.with the bul$Ongs and hriprorerrr ih`eribn eieged:situate,"and. h O@4v)lOft at Oiiertt, in-the Town.of Southhold, Cotmt off 'yi .'Su�fo�1S�tate•ot`tra York, knots atddesignated,as"lot no.-6 at: showh'ori Nap of Petty•.a„Bi'gitt .:made by_Van. Tuyl and.San, Licensed land Su veyers,:Greenport, AY dated',4/6/71•revised-6/28/72 -s3 oumed and developed by Irviiig..and George Neuatast, filed Ynctlie;dffice•.,of�the Clerk' _ of the Catnty'of.Suffolk, State of Nev.York•;on 1/26r/3=ari no 5859� baaded atd ,. desc-r ibed according:to said map ds .follow. EDCIW ? at•a.point on the.northerly side of Pe[ty's'Drfve:at:the'sotiiheat:.corner ; of the.frenises to be decribed; . RUP.LNG 11OXE alens the northerly side of Petty's Drive'North•67 degrees 43 minutes nest 187.0 feet; >; � 4 minutes 10 seconds east 321.17'feet;_:i"TF{�CE north 7 degrees , 11iOCE sough 49 degrees 41 miretutes 50 seconds east 125.0 fee[; T1LV.F. south 7 degrees 49 minutes 20 seconds east 300:Ofeet tM�t:hd'rtortherly side v. of Petty's Drive at the point or'place of BF1:I6I M.' z ,. Teyint..,»rth.a right.sae.lid iM:r«t,ff:ny,a.m.f>wsr a tfa tent part+n inn to'e+!y sjrwb end roe0s abutbr+/ �t tonabotredesatbeoprer,raatothe,centii.Fktes_thered:Topalliw,utmtteeopustawieii'endifl,flassvtrerd .., �. i ri�rltsdmeprtYdtT.efrstOsrtfnarid:osaldfirateiep:.TeNaveArQToMeldtAetxehrttesMMnprsntadur;toffs ' partydtonsamridpan,trehef�sorsuocessorsartd++elRnadda•perty'dtltiiecortdpillforever.':_' -. ; �> AwdfaP:rtYdtf»firapartcoyenintathattlie'pertYdt .rtrstpartttasnotdorraitifleridsnpmirpwherebythe f' saio Oramises AMe Dees errumbered in 5�""`- � `i�.' Mdtl+s.wMdp+efYapsrt.'Incompfiinnwfm:.eetlonl�OttAetknlwv,•opiiNiaAs,tAri�M�fiartYottfiptkitpart wrll reCeire tfa COnfideretgntor tAls oonwtiance end wla haldtM AphtWroe,�MesWt'torpidarseioet esetnuthind '•�:, z fob*opptiedfiru lot thepurpesiolPrNr9mecoKolawknprownargwwwttl:ppty.dr-1 -firstbMreopyment d die oost d fife imp:wemem fxfae using MY pon d ton toW d tfa semi to/eny'gllter pu?poee. The word-p*,W sheU be construed as If it read"port;«"wta+ayir Me ser"61 d* f' M wlarsa yYlsereel.to a party d tta(rp part by d•�ty a=«uteri Otis Oe.d w.kurt. f r.►�lttuCt a :f + t ' 1 , FtivF::t: �'�.'e'R+,. :�i'r::.s@�iGi�i+"��'�•r.SF!�X?.:'��i*�.i:� �:�a'%_n.Y+:S.::::.`.•'•�.�.:•'iff�=%4!!a3'in�,`<t+�fdY:Sr`r�tV. Ir:r:'.: e�-a.^. ^ '�%�-•4 �;��•�L�1'4.• *,,ate. .�.Y t. S>'7►T[1X 1MYK�'OMC:ccouwr f Qs':cSut[OI F:. .:... '..t�`Ali.i'�'.�::::.: �•;..,"S. a �,,r Cf.MjWtr011KiCC11MTY0/;?�'" r'_. �y;,•i-r o. 1996 1x-w-'ca4'. C-pomiLI fIPJ1 w'CARP we e M tY •before M6 :t orearwtiwt+e.:;•r _ t0 me wwo to be Itre MiAriOiM, dpd10e0 r and Nl�p,.` to I"1Jkpm 10 a>M Yid vldlMt !dndteed h M1d qb0 « in","'��" C� �od tM;fOrpol!yaMiani�Mt.SAW 1411 4dYW' •4'`�'STATE Ot raw L+{ raac Ct)UnrTiror ut't5 ,�� eK aTAT►ssT+�rrotttc;;t�owityoF` on»�b. before me N a: d: t: t»reorr.np o ne d n(� t k1 Oda*me .� u :towiebwAsq b.a�.r W me T`";;°�'did aoo...ee: '+ ther�rOwj�InoS:Reiii`i:'ta%'Aerpd:p:4rbwiu,K,'rkl, : .. Mq 7 �•f�►�f� .iAoin';I bei'rinoniilrj;,�f,;4aT;,d;a;. 't .:TQ/17t74'tt: e. Ino'aM4dr': "�• rx he is tw vice CS 1d4.rt! Mari de dy r ine'rijr tti�t,:Ai"iule�sr No:=< ; J3;,, - �•..;„^i:twsOf0oglfOrr ''`. . . :�r r.�' .: k:a.:ri;�"~ '•:;ite'�LMMdMOw1•` M�wd teNcA e�Qrhd.tlr4 4o%OpYp.yyy�pyy�' dtM;i; 7 x s�!a�e00Yq ieeelYlnarlr: �i`' - wtOstaefE4w:w�t+rM::wr vrwrw=ii�d iwr;.'',z; ff :•order Of the board of dwttO�f.Ot Nid�. d �f110 SM1N:'/w4./w/t,:�f1�N{Q MfbfYf . V•'• dut w Wfrrd h nMy twarieo a �Ort Md ( M 1!N GYM t�1M`01IbdIbN A: •rMn14 O!wkgrs rNN/t0. `Yix rru.• �ib,•J?9 _. ......�'r`��.:n"c...�..°°'.Iwo 4b tccnoM.'OI4:00 ,: �"; �arga►n�Salt�reD";. Kooc. '?200:.• ,� , '< ' tr+cl t�iriaiors`kb LOT:, Taft ma.49nQ9 -15132 O"ONTO" —-- 0[iem CMNM f;r t t .��Othr�S ' rp L ':5 Made) �� c)(0c' rtx,aie..ed er _ RE R`ABSTRA }CORP. >7 T N-%. •NFW YORK,NY IOW4 aTwo eoarence•�aw ro is Mre '` r �� f - R12►3�yloo ''i s ` • • a �s. �r 4: r;%.t,.rd"rF.'•�;if,'.�%i ii�"�v°,�`tiit�3G�iib*` •���H'';.•:h-;,ti L ` ;:r'i" .v '+n! p. 3 s 11775 PClt YORK,COUNTY OF Suffolk aa; STATE OF NEW VORK,COUNry OF O tt:n the day of Mav 19 06 before me On the oeraonelly Unle-. Cr?Pr7lTI-LI 6RCZfERS RFAL2Y CO.R?, personally Com day of t9 befnre me e to ma known to be the indl d.1 deecrlbed in and who to me known to be the Individual described in and who thaT ad the Cvtod he inatrumen['and acknowledged eae(•Jtatl the foregoing Instrument, and acknowedged thM execvtsd the same. �� that executed the setae. STATE OF UEW YORK,COUNTY OF �liS�, CU.( at. STATE OF NEW YORK,COUNTY OF On the O1 tlev of uly/'._ t9 before mn Pemonalyeame f3fLty1[) sal�(�� On the day of t9 before me m me known,whn,being by me d!y'sworn,did dooms,and rxrsonrlN Tema aY that he rttaiaes at No. /7 rtl+o subscribing w,tnem to the foregoing In trumoM with ,Teit'na/ate , ftl`f `Ev'�`f five— why+t err,txnonts"y acquainted,who,toeing by me Bury the, he is the V!Cp_ prr<.5 e4it,t-I ttworn,did depose end say that he resides at No. Of C `P p t (►I �7:UL AC/s rcQC.,(ft f �C.L :thn he knom the Corporaton deacriped d"ecribOd in and whc exeWtetl the lOrto W the indldual In and wF.ieh exOcWOC the toregding instrumant•d°t-'�0" Mat he;said subscribt °0°i^g inateunent; ioesa.m....:._.._. n0 vAnm. 'wee press, and new t thart � order of the board of direaOrt, Of said corporation, oxftute the same;end that he,said wknesy that he Signed h none thereto end at the name time Subscribed h /'� by like ornEer, nertte ea witness thsreta i �.-, .Al l�.fnnn f" //Y flan STATE OF NEW YORK County of Suffolk ss.: iy ED WARD P. ROMAfNo Clerk Of New York in and for said Count of the County of Suffolk and Clerk of the Supreme Court of the State (Said Court being a Court of Reco(d)DO HEREBY CERTIFy that I have compared the annexed copy of Dead fiber at Page S� 4 and that it is a just and true copy Of such original Recorded of the whole thereof. Deed r and IN TESTIMONY WHEREOF,I have hereunto set my hand and a atIbced the sea!of said County and Court this ............. ...... day of A,(j ve� z00/ Form No. I04 Clerk n t —' unvw lba ma:m vml a•+oz nl uac.z vs —��.." OR AU3dOtH OOUT a I..m d - �• ��In wcaml cur+ram —tr'—�'w... _ _� -- -- .. -- ,,, ••--••-_ ,,,�- _ "'�3 1111•TRfi ti '� aY.m inVn —� b Z 0 ( �—j� �„ {M 4uw3 I Sa n wunz •n wvcum �—� -_ _ _CID _ --� a arm z'y-\ l" 1 �7O2by BJlAJ2S XDl J711OJd n ms ta.n�v a�raum� —rn—ou —>ao —._— L _ r...l at t+ou3Js OIOFII(g5 nab / Y i 0 )nojj(1S 3o xiNm:) mat �" '••� 't . ru fz D•t - �� � R Qd wn a K17t rR Plrzzl r Pnn - wm t. yl S R � �pp.y..•p r•o-bM Tf10•tFM O•t^ A .. � � � O 91'lLm 91'iL GI 91'W IN- Pn41� K'[ � Q Dirt, l y r r '^ lyPt"l 1 1R fifi•1 • tT[ � u fi't f«Pm)i wM 917a$ s n uT a•f rzi t. I .7� �, �¢ ` m• to t At" 4. r m aS �Cn "�4 f RS it m r Pil•s zR e n PPn � zR P rt n Im" n Pram a Pml Pm ^ ISI 59.0•d r �o Q FORM NO. 3 1 APR 2�8 NOTICE OF DISAPPROVAL r DATE: April 26, 200 TO: Madeline Droege 885 Petty's Drive Orient,NY 11957 Please take notice that your application dated March 4, 2002 For permit to construct an accessory wind turbine at Location of property: 885 Petty's Drive, Orient,NY County Tax Map No. 1000 - Section 14 Block 2 Lot 24 Is returned herewith and disapproved on the following grounds: The proposed accessory wind turbine, on a 40,336 square foot conforming lot in the Residential R-40 District, is not permitted pursuant to Article III, Section 100-33C which states, "In the case of a waterfront parcel, accessory buildings and structures may be located in the front yard provided that such buildings and structures meet the front-yard setback requirements as set forth by this code." Principle building setback,per bulk schedule, is 50 feet. The accessory wind turbine is noted as being +/- 33 feet from the front yard line. In addition, the proposed accessory wind turbine is not permitted pursuant to Article IIIA, Section 100- 30.A.4, which states, "Accessory buildings shall be subject to the same requirements as 100-33 of the Agricultural- Conservation District,"which states, "In the Agricultural=Conservation District and Low- Density Residential R-80, R-120, R-200, and R-400 Districts, accessory buildings and structures or other accessory uses shall be located in the required rear yard, subject to the following requirements: A. Such buildings shall not exceed eighteen (18) feet in height." y The proposed accessory wind turbine is as being 64 feet in height. hermore the proposed wind turbine is not permitted ursu' to icle III, Se -31C. An -(� ccessory wind turbine is not a permitted use. utho ' ed 1 a e Note to Applicant: Any change or deviation to the above referenced application, may require further review by the Southold Town Building Department. CC: file, Z.B.A. TOWN OF SOUTHOLD BUILDING PERMIT APPLICATION CHECKLIST BUILDING DEPARTMENT Dc have or need the following,before applying? TOWN HALL Board of Health SOUTHOLD,NY 11971 3 sets of Building Plans TEL. 765-1802 Survey �PERNIIT NO. Check nJ Septic Form N.Y.S.D.E.C. Trustees Examined ,20 Contact:. Approved ,20 Mail to: Disapproved a/c Phone: Building Inspector APPLICATION FOR BUILDING PERMIT J �16 Date , 20 '= INSTRUCTIONS { a. This application MUST be completely filled in by typewriter or in ink and submitted to the Building Inspector with-1- sets of plans, accurate plot plan to scale.Fee according to schedule. b. Plot plan showing location of lot and of buildings on premises,relationship to adjoining p Wises or public streets or areas, and waterways. _T-�: c. The work covered by this application may not be commencedbefore issuance:of:Buil'ding Permit.N _- d..Upon approval of this application,the Building Inspector will issue a Buil'dUPermit'to,the applicant. Such a pernut shall be kept on the premises available for inspection throughout the work. e.No building shall be occupied or used in whole or in part for any purposeivliat"'so-ever until a Certificate of Occupancy is issued by the Building Inspector. APPLICATION IS HEREBY MADE to the Building Department for the issuance of a Building Permit pursuant to the Building Zone Ordinance of the Town of Southold, Suffolk County,New York, and ot]!e applicable Laws, Ordinances or Regulations, for the construction of buildings, additions, or alterations or for remgval--bi demolition as herein described. The applicant agrees to comply with all applicable laws,or es,building andrer�,tioip, Quut3 4l-4�1 authorized inspectors on premises and in building for necessary inspections-',,{' k (Signature of applicant or name,if a corporation) P�3 /6�L a fi./� ky//2�-7 (Mailing address of applican) State whether applicant is.owner, lessee, agent, architect, enoeer, general contractor, electrician,plumber or builder Name of owner of premises (as on the tax roll or latest deed) If applicant is a corporation, signature of duly authorized officer (Name and title of corporate officer) Builders License No. Plumbers License No. Electricians License No. Other Trade's License No. 1. Location of land on which proposed work will be done: 98S . E&&k c IDA111 e- D�2/�.�7� "al House Number Street Hamlet t^ «stow County Tax Map No. 1000 Section Block •hot` --I. .-k .:"i �� Subdivision Filed Map No. Srot ._....'..,..:;.�`a� (Name) 1 2. State existing use and occupancy of premise and intended use and occupancy of proposed construction: a Existing use and occupancy `e— b. Intended use and occupancy p�G//ND/)�iGL ON�/ZON7.`G/YWN 3. Nature of work(check which applicable): New Building Addition teration Repair Removal Demolition Other Wor (Description) i 4. Estimated Cost O d Fee I (to be paid on filing this application) 5. If dwelling, number of dwelling units Number of dwelling units on each floor If garage, number of cars 6. If business, commercial or mixed occupancy, specify nature and extent of each type of use. 7. Dimensions of existing structures, if any: Front . Rear Depth Height Number of Stories Dimensions of same structure with alterations or additions: Front Rear Depth Height Number of Stories ; 8. Dimensions of entire new construction: FronL Rear Depth Height Number of Stories 9. Size of lot: Front Rear Depth 10. Date of Purchase l Name of Former Owner 74 /L/Z) /0G /rilll - 11. Zone or use district in which premises are situated 12. Does proposed construction violate any zoning law, ordinance or regulation: '�V 13. Will lot be re-graded Will excess fill be remo,Ved:from premises: YES w 14. Names of Owner ofpremisesA �� �C Address pO� ���Z. Phone No. 3�3 3��� Name of Architect . Address Phone No Name of Contractor Address ` _- Phone No: 15. Is this property within 100 feet of a tidal wetland? *YES ✓ NO f • IF YES, SOUTHOLD TOWN TRUSTEES PERMITS MAY BE REQUIRED 16. Provide survey, to scale, with accurate foundation plan and distances to properly lines. 17. If elevation at any-point on property is at 10 feet or below,must provide--topographical-data on surveys 3: STATE OF NEW YORK) SS: COUNTY OF �I YOfA being duly sworn, deposes and says that(s)he is the applicant l (Name of individual si contract) above named, (S)He is the (Contractor,Agent, Corporate Officer, etc.) of said owner or owners, and is duly authorized to perform or have performed the said work and to make and file this application; that all statements contained in this application are true to the best of his knowledge and belief; and that the work wilrbe performed in the manner set forth in the application filed therewith. Sw to before me this V� day of MQX lk 20 2_ blic Signature of Applicant Note bllic, Ste eAOf New Yolk No. 01 HE6059270 li commission Suffolkalified in ion Expires 23, 200 h-�� 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. ) Madeline Droege 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. I. Are there any areas which contain wetland grasses? Yes 2. Are the wetland areas shown on the map submitted with this application? Yes 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 Trus-�L:ees 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? No- (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? No If none exist, please state "none. " G. Do you have any construction taking place at this time concerning your premises? No 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? Yew_ If yes, please explain where or submit copies of deeds. Vacant lot across the street- SCTM• 1000-1br- 2- LaIS ZZ#� I . Please list present use or operations conducted at this parcel Residential and proposed use Resir3Pntial ate 3/87, 10/901k APPLICANT TRANSACTIONAL DISCLOSURR FOItM The Town of Southold's Code of Ethics rohi a . onflicts of interest on the part of town officers and emplogre. The purpose of th s form ie to prow de nformat1 n` ct can alert the town of noes ble conPl cte of_ nterea' and allow it to take whatever action is necessary to avoid same. YOUR NAME: Madeline Droe e (Last name, first name, middle snit al, unless you are applying in the name of someone else or other entity, such as a company. If so, indicate the other person's ox company's name. ) NATURE OF APPLICATION: (Check all that apply. ) Tax grievance Variance X Change of zone Approval of plat Exemption from plat- or official map Other (If "Other, " name the activity . ) Do you personally (or through your company, spouse, sibling, parent, or child) have a relationship with any officer or employee of the Town of Southold7 "Relationship" includes by blood, marriage, or business interest. "nusiness interest" means a business, including a partnership, i:: which the town officer or employee has evert a partial ownership of (or employment by) a corporation in which the town officer or employee owns more than 5% of the shares. YES NO X If you answered "YES,"complete the balance of this form and date and sign where indicated. Name of person employed by the Town of Southold N_A _ Title or position of that person N A Describe the relationship between yourself (the applicant) and the town officer or employee. Either check the appropriate line A) through D) and/or describe in the space provided. The town officer or employee or his or her spouse, sibling, parent, or child is (check all that apply) a A) the owner of greater than 5% of the shares of the corporate stock of the applicant (when the applicant is a corporation) + B) the legal or beneficial owner of any interest in a ti. noncorporate entity (when the applicant is not a corporation)t C) an officer, director, partner, or employee of tite applicants or D) the actual applicant. UESCRIP,rION OF RELATIONSIITP Submitted this 2Lda ( 1A ZOOZ 01 Print name /71pP N��20c� �� e�1: --T-)wn Of Southold P.O Box 1179 ouuthold, NY 11971 * * * RECEIPT * * * Date: 06/25/02 Receipt#: 6587 Transaction(s): Subtotal 1 Application Fees $600.00 Check#: 6587 Total Paid: $600.00 Name: Keegan, & Keegan LLP C/o Daniel C. Ross P O Box 146 Mattituck, NY 11952 Clerk ID: LINDAC Intemal ID:57563 COUNTY OF SUFFOLK ROBERT J GAFFNEY SUFFOLK COUNTY EXECUTIVE THOMAS ISLES, AICP DEPARTMENT OF PLANNING DIRECTOR OF PLANNING December 29, 2003 Town of Southold Zoning Board of Appeal Pursuant to the requirements of Sections A 14-14 to 23 of the Suffolk County Administrative Code, the following application(s)submitted to the Suffolk County Planning Commission is/are considered to be a matter for local determination as there appears to be no significant county-wide or inter-community impact(s). A decision of local determination should not be construed as either an approval or a disapproval. Annlicant(s) Municipal File Number(s) Droege,Madeline* 5186 Schlussel,Murray(Estate of) 5259 Rubinow,Laurence and Betty Ann 5386 Brown, Karen 5411 Forchelli,Jeffrey 5418 Cheska,John and Kathy 5423 Sogoloff, Dimitri and Helen** 5426 Rodin,Charles and Barbara 5433 Pagano,Joseph 5434 *Appears inappropriate as sufficient information has not been submitted to demonstrate compliance with applicable variance criteria. **Premises should be encumbered by appropriate developmental restrictions,particularly as set forth by the Z.B.A. Very truly yours, Thomas Isles Director of Planning S/s Gerald G.Newman Chief Planner GGN:cc G:%CCHORNYVONINGIZONINGIWORKINGLLD20031DEC\SD5186.DEC LOCATION MAILING ADDRESS H. LEE DENNISON BLDG. -4TH FLOOR ■ P O BOX 6100 ■ (5 1 6)853-5 1 90 100 VETERANS MEMORIAL HIGHWAY HAUPPAUGE, NY 1 1 788-0099 TELECOPIER(5 1 6)853-4044 i t APPEALS BOARD MEMBERS Southold Town Hall 53095 Main Road Ruth D. Oliva,Chairwoman P.O.Box 1179 Gerard P. Goehrmger Southold,New York 11971-0959 Lydia A.Tortora Telephone(631)765-1809 George Horning ZBA Fax(631)765-9064 Vincent Orlando http://southoldtown.northfork.net BOARD OF APPEALS TOWN OF SOUTHOLD December 22, 2003 Mr. Gerald G. Newman, Chief Planner Suffolk County Department of Planning P. O. Box 6100 Hauppauge, NY 11788-0099 Dear Mr. Newman: Please find enclosed the following decisions, applications, surveys, tax maps, building disapprovals, and related information for review pursuant to Article XIV of the Suffolk County Administrative Code; within 500 feet of: R — STATE OR COUNTY ROAD W —WATERWAY (BAY, SOUND, OR ESTUARY) B — BOUNDARY OF EXISTING OR PROPOSED COUNTY, STATE, FEDERAL LAND ZBA NAME ACTION REQUESTED R W B 5186 DROEGE, M ACCY WIND TURBINE — LOC. & HEIGHT X 5259 SCHLUSSEL, M NEW DWELLING — FRONT SETBACK X 5386 RUBINOW, L ADDITION — FRONT YARD SETBACK X 5411 BROWN, K ADDITION — SIDE YARD SETBACK X 54181 FORCHELLI, J ADDN — SY SETBACK & LOT COVERAGE X 5423 CHESKA, J ADDN — LOT COVERAGE X 5426 SOGOLOFF, D DECK— BLUFF SETBACK X 5433 RODIN, C 2 STY ADDN — FRONT PROP LINE SB X 5434 PAGANO, J NEW DWELLING — FRONT YARD SB 1XI If any other information is needed, please do not hesitate to call us. Thank you. Very truly yours, Jess Boger Enc. cc: ZBA Staff `D t �V°" ram 91i110 3 P /V. Z.B. June 10,2002—Page 5 j By Nov. 10, 1998, the demolition permits expired because the work had not started within six months of issuance.The developer was advised a certifi- cate of appropriateness would be required before demolition could be started. The developers applied for the certificates,but the application was denied.No appeal was taken. The developer demolished one of the buildings on Sept. 18,2000, and the city issued a citation for the demolition and filed a lawsuit, demanding a per- manent order preventing further demolition actions without a certificate of appropriateness. � The court issued a permanent order preventing the demolition without a certificate of appropriateness. _ The developer appealed, claiming the general zoning ordinance required the planning commission to review amendments and the designation of Avenue A as a historic district.Since the planning commission did not do so,the amend- ment and the designation were void.Further,the statute required subject prop- erty be specified with names of the owners.The developer asserted the amend- ment was void because the property was not specified as required. DECISION: Affirmed. The lower court properly granted the order. The court determined the 1996 Historic Preservation Commission Zoning Ordinance superseded any contrary provisions in the general zoning ordinance. The ordinance did not provide for review by the planning commission,and the Rome City Commission acted properly within its authority. The court also determined the developer was not harmed.by not having their names listed on the amendment. Citation:Robinson Builder-Developer Inc. v. City of Rome, Court of Appeals of Georgia, 3rd Div.,.No.A02AO627(2002). see also:Barton v Atkinson, 187 S.E.2d 835(1973). Accessory Use—Landowner uses 40-horsepower sawmill to saw trees on his residential property City doesn't cite for noise ordinance but for zoning violation NORTH CAROLINA (04/16/02)—In September 1996, Dobo bought a 40- horsepower super hydraulic sawmill,which was powered by a 5-gallon diesel engine and was over 24 feet long, 6 feet wide, and 7 feet high. He used the sawrrull to saw trees for lumber for various purposes, includ- ing building a hobby shop in his backyard, for woodwork, for building struc- tures and furniture,and to give to his friends and neighbors.He did not sell the lumber he produced. In March 1999,the city annexed Dobo's property, so he became subject to a the city's zoning ordinance.A code enforcement officer inspected Dobo's prop-erty. He did not issue a citation for violating tfie city's noise ordinance, but { i Page 6—June 10, 2002 Z.B. rather sent a notice of zoning violation. The zoning ordinance permitted accessory uses that were incidental and subordinate to the principal use or structure. Apparently,the city believed the use of the sawmill was of an industrial nature involving a manufacturing pro- cess and not a permitted accessory use. Dobo appealed the notice of zoning violation,but after a hearing,the board upheld the officer's determination. Dobo asked the court to review the deci- sion.The lower court upheld the decision,and Dobo appealed. DECISION: Affirmed. The decision Dobo violated the zoning law was upheld. Despite the fact Dobo argued the ordinance was unconstitutionally vague and was an unconstitutional delegation of legislative authority,the lower court 1 did not address these arguments.Instead it correctly concluded it was inappro- priate to address those decisions when reviewing the administrative officer's determination. The lower court also did not have the statutory authority to address Dobo's { constitutional challenges. He could have brought a separate lawsuit on these issues. In addition, the evidence in the record was sufficient to support the viola- tion. Although Dobo argued the use was personal and recreational, there was evidence the use was not"customarily incidental and subordinate to the pri- mary residential use of the property." Dobo's property and the surrounding areas were residential. Dobo's saw- mill activities also included the use of a trailer, a backhoe,and a dump truck. The sawmill and trailer weighed 4,000 pounds,and the backhoe weighed 12,000 pounds. Dobo milled lumber from his own yard and the yards of neighbors, relatives,and others.Others helped him,including some paid employees of his business operation. All this information supported the finding that the use of the sawmill was not incidental or subordinate to the primary residential use of the property. Citation. Dobo v Zoning Board of Adjustment of the Cite of Wilmington, Court of Appeals of North Carolina, No. COA01-249(2002). see also:Tucker v Mecklenburg County Zoning Board ofAdjustment,557S.E.2d 631 (2001). j see also. Massey v City of Charlotte, 550 S.E.2d 838, 554 S.E.2d 342(2001). i Construction Without a Permit — Shoreline property owner receives permit to correct erosion Years later, constructed additional support CONNECTICUT(04/16/02)—The owner of shoreline property applied for a permit to install a revetment to prevent further erosion.In 1990,the permit was FROM D OSS@@ tEGANBKEEGAN. FAX NO. : 2984427 Jun. 05 2003 01:30PM P2 a J KEEGAN & KEEGAN, L L P ATTORNEYS ATLAW. VVV 147 Nowni Ocr.AN AvrNuE P.O.Box 918 THOMAS 1. KEEGAN,JR. PA"�rI IocuE,NEw Yom,11772-0918 EAST END OFFICE DEBRA A. BYRNES TELEPHONE (631) 475-9400 315 WFSTPHAUA ROAD DANIEL C.ROSS FACSIMILE(631)475-0601 P O_Boa 146 MArn•rvex,Naw YoRx 11952-014 (631) 298-1200 JAMIE ROSNLR (631)298-4427 FAx THOMAS J. KEEGAN RETIRED June 5, 2003 By fax to #765-1823 Southold Town Zoning Board of Appeals JUN Southold Town Hall .�IfF 5 2443 53095 Main Road I0 6/S/03 S/ P.O. Box 1179 80Agp o g f6 Southold, NY 11971-0959 A�qt Attention: Ms. Linda Kowalski Re: Appeal of Madeline Droege Appeal No.: 5186 Premises: 885 Petty's Drive, Orient, New York Dear Ms. Kowalski: This letter will confirm that at the request of the opposition's attorney, Patricia Moore, we are consenting to an adjournment of the continued hearing on this matter from June 5, 2003 to September 11, 2003. Thank you for your courtesy. y S, s DCR:kr cc: Patricia Moore cc: Madeline Droege date/town/droege.nA5.1a DG*SS@k9E GAN&KEEGAN _} FAX NO. : 2984427 Jun. 05 2003 01:29PM P1 Keegan &Keegan, L.L.P. Attorneys at Law 315 Westphalia Avenue P.O. Box 146 Mattituck, New York 11952-0146 Thomas J. Keegan,Jr. 631-298.1200 Debra A. Byrnes Fag: 631-298-4427 Daniel C. Ross FAX COVER SHEET DATE: June 5, 2003 RECE,��® JUN,- 5 2003 TO: Linda Kowalski/Paula Quintieri ZONING BOARD OF FAX#: 765-1823 APPFAcs FROM: Dan Ross/Karen RE: Droege adjourmnent CONE%4ENTS: Please replace the letter faxed earlier today with this letter. TOTAL NO. OF PAGES INCLUDING COVER SHEET: 2 If copy is Weeible or you do not receive all the vages please callour office immediate) (631) 298.1200 4� YO 0 10 ICL5 - Y 1 Page 64 April 17, 2003 Southold Town Board'of Appeals Regular Meeting Public Hearing 2:15 p.m. Madeline Droege#5186. Request for a Variance under Sections 100-33C, 100-30A.4, 100-31C, based on the Building Department's April 26, 2002 Notice of Disapproval stating that the proposed structure is not a permitted use, and that it does not meet the code's height limitation or minimum setback provisions. Applicant proposes an accessory wind turbine structure at less than 50 feet from the front property line and at a height greater than the code limitation of 18 feet, at 885 Petty's Drive, Orient; Parcel 1000-14.-2-24. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? DAN ROSS, ESQ: Dan Ross on behalf of Madeline Droege with regard to this variance basically I'd like to hand up to this board some papers including the affidavit of sign posting and some other material I'll refer to on the presentation. In addition to the affidavit of sign posting I've handed up some manufacturers information with respect to the wind turbine which is at issue here. I have also handed up a noise study by the manufacturer of the wind turbine and an article regarding wind turbines which again I'll refer to a little later. Mrs. Droege resides at 885 Petty's Drive Orient with her 2 young daughters and that's the location she hopes to erect the wind turbine for emergency use and for the production of electricity. She seeks a front yard a height variance and according the BD a use variance. The front yard variance she's seeking to put the wind turbine 33' into her front yard 100-33C requires 50' so we are seeking 17' variance with regard to the front yard setback. The proposed wind turbine is 64'high permits an 18'height for accessory structures and we are seeking a height variance the NOD suggests we need a variance from 131 C I respectfully disagree I submit that the use of the wind turbine is customarily incidental to residential use and that's really not a variance that's necessary in this case. A little bit about the premises. It's located in an R40 zone. The property is on the sound in Petty's bite it's at the end of a road there is a residential house to the west. The sound is to the north. The road is to the south with no neighbor across the road and to the east there is no immediate residential property. It's basically at the end of a street. The approximate nearest neighbor in terms of foot. The closest neighbor is the neighbor to the west. MEMBER HORNING: How many feet approximately? MR. ROSS: I don't know I didn't have a good surveyor- MEMBER HORNING: 200, 300, 100 any idea? MR. ROSS: More than 100 I believe but the wind turbine is 64'high the blades are 82" and weighs 75 lbs. As I indicated we submitted the manufacturers information with respect to the measurements and the wind turbine being proposed. In a R40 zone, the permitted height for residences is 35'. Of course that's not measured to the top of the residence so an actual structure can be more than 35'. Page 64 of 73 • Page 65 Aprfl 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing CHAIRWOMAN: That's principal. MR. ROSS: Correct, I'm not talking about accessory structure but when you're dealing with height in a residential neighborhood you have structures that are 40'high. So really what we are seeking is another 20' another 1/3 over the top which is necessary because this is a wind turbine. If the wind turbine was below the structures, the structures would block the wind. So we are seeking basically a third over what normal structures would be a 2 story structure in an R40 zone. Basically I look at it and I suggest it's analogous to a flagpole and instead of a flag at the top, you have some blades that are being moved by the wind. Objections have been raised and one is to the noise that it may make and we've submitted a study by the manufacturer the study was done in an area where there are 2 roads within a half mile of the test site. I don't know the exact distance but the main road is probably about a half mile from Mrs. Droege's property so in that sense it could be considered similar. In the test by the manufacturer, the background noise produced and this isn't from the wind turbine was 48DBA to 57DBA with regard to the wind turbine the noisiest spot is 42' down from wind. So they took the measurements there. The noise produced for normal operation was 3-4 DBA's. MEMBER HORNING: What is DBA? MR. ROSS: Decibels. So the background noise at the spot from roads and other ambient noises is 48-57 the wind turbine is making 3-4 in another phase is called the unloaded where the turbine is allowed to swing freely the noise went to 6-7 DBA and at wind speeds at28 mph they estimate 15 DBA's so I think the study shows this is not a noisy operation. MEMBER HORNING: Are they going to lock it at winds greater than 30 mph? MR. ROSS: The normal operation would be to load it not unload it and let it swing d freely but even in the unloaded it's only 6-7 DBA which is minimum noise that was a test done on a 42' tower. This is a 60'tower being proposed. Recently an article in commonground which is publication of the LI Farm Bureau there was a note with respect to wind turbines which are being put on farmlands in Calverton and just a little bit from the article the wind turbine is the first of 5 to be erected on LIPA on farm site in Suffolk County with the cooperation of the LIFB so this is happening in Calverton, much larger ones the caption in the photograph is there is now a working windmill dotting the landscape in Calverton. It is quite a site actually it is sleek, quiet, and unobtrusive as it sits among the growing cornstalks. You can't open the newspaper in any week without seeing an article about wind turbines and wind turbine farms. They are putting them on in farms, they are putting them out in the water. This is in comparison a rather small residential unit. MEMBER HORNING: What is the estimated electrical output of the turbine? Page 65 of 73 • Page 66 O April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MR. ROSS: It's in the manufacturers material. CHAIRWOMAN: Mr. Ross, the 64' in height is that with the tilt up tower with the guidewires? MR. ROSS: Yes. CHAIRWOMAN: So it's 64'up and the guidewires going down and what's at the base? MR. ROSS: I would refer you to the manufacturers- CHAIRWOMAN: They don't talk about it but I can't imagine at 34'up it would be sufficient enough to anchor it into the ground wouldn't it have to be into some kind of concrete pad? MR. ROSS: I would expect it would be secured so it would hold it up. CHAIRWOMAN: But there's no plans of that? MR. ROSS: I will provide that if the board desires. CHAIRWOMAN: You said you felt this was customary in the residential districts, can you think of another one in Southold? MR. ROSS: There was one on Aldridge until recently and there's 2 or 3 in the Orient area I believe. CHAIRWOMAN: Aldridge? MR. ROSS: Aldridge Lane, it has been removed the fellow sold his property and took it down. CHAIRWOMAN: Are there any others existing in the area? MR. ROSS: I have seen them I can't give addresses though but if the board wishes I will research that and provide information. CHAIRWOMAN: So we can make a determination if it is in fact a customary- MR. ROSS: My point isn't that it's customary in the sense that everyone has one I'm saying it's incidental to residential use in this circumstance. This is a residential wind turbine which is being used not to sell power to neighbors but for her use incidental to her use the creation of power. MEMBER HORNING: Is it going to supply enough for the house? Page 66 of 73 Page 67 O April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Heanng MR. ROSS: Yes depending on the wind and in fact it there's a storage unit. MEMBER HORNING: Batteries? MR. ROSS: Yes. MEMBER HORNING: Because it's going to produce DC power into the batteries to make it AC with either an alternator or whatever to maintain AC power, that's part of the package? MR. ROSS: Yes and she needs to get a permit from LIPA and she's required I understand to sell excess power back to LIPA. This is just the first step in a long- MEMBER HORNING: So it has some semi-commercial use. MR. ROSS: She's required to do it, she doesn't want to do it, but if you produce electricity LIPA requires you it's not really a sale it's an offset against what they charge you for your use. MEMBER ORLANDO: LIPA is required to purchase any power you generate so she'll be giving it back as a credit. MR. ROSS: Her primary use she's out there and she has 2 daughters. Her primary y concern is for emergency use last year there was reported in the Suffolk Life in July a quote from a LIPA spokesperson that said last summer LI came within 100 megawatts of heavy rolling blackouts and this is a recurring issue whether it's to obtain further increases or not and none the less that's LIPA's stance and they've said it a number of times. Mrs. Droege wants to have her own electricity. MEMBER HORNING: Most people get a generator for emergency power. Diesel or propane gas or whatever. MR. ROSS: The second reason is she wants to produce her own energy and this she wants to do it in an environmentally safe manner. She feels strongly about•this she intends at some point to put up solar panels and she desires she thinks the government should'encourage this not discourage it. MEMBER ORLANDO: What is the cost of this unit? MR. ROSS: I don't think it's a major cost. CHAIRWOMAN: $2600 according to the figure here. The real issue I think the legal issue that we in my mind that we have to get over in some fashion or another is we have a number of uses that are permitted accessory uses in the code. A wind turbine is not one Page 67 of 73 Page 68 O April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing of them in fact I said well maybe there's a facsimile thereof and went back to the code last night and read it again and I simply couldn't find anything that even resembles a wind turbine. Now to presume that it is customary and incidental if it's not customary it's not incidental it's not accessory so the legal hurdle in my mind aside from getting over the variance and safety aspects of it the ability of whether it can withstand the windpowers whether this particular company has a demonstrated record and you can produce an engineers report that will document that it can withstand that kind of windpowers we have on the east end that there is a safe fall or collapse zone or the ability of that that would not in any way threaten any of the adjoining property owners. Before we even get to those issues, I think that in my mind the point of law is is it a permitted use. The BD says no. Does is appear on our code, no the words wind turbine do not appear in our code so I'm really going to ask you to address that either in a form of a memorandum of law because it's not whether it's customary as well. So having said that there's one other question I'd like to get to the board members and to people in the audience going back to . the base if you could give us the dimensions of the base, the guidewires, the widths at the center what it's going to be,mounted on whether its' going to be a concrete platform, the height of the platform and the dimensions that the platform will be so we look at the total picture. Those are some of the thoughts that I have at this time. I'd like to ask the board members if they have any questions at this time, Mr. Orlando. MEMBER ORLANDO: Based on your data sheet it states it's a 1000 watt unit and battery storage 1000 watts that's 10 100 watt light bulbs this thing can power. That's it. I think it's a lot of gyration and efforts for 10 light bulbs. MR ROSS: Is the question that you don't believe this unit can power the house? MEMBER ORLANDO: Absolutely it can't. MR. ROSS: That's why I went to law school. I'm told that it can,but- MEMBER ORLANDO: Don't turn the microwave on. MR. ROSS: I'll find out. MEMBER ORLANDO: The second opinion question is would you want this next door to your house? MR. ROSS: I wouldn't have any problem with it. MEMBER GOEHRINGER: I guess the real question here is why this location and why this height? I know the height needs to be this location but why not put it back in another location? MR. ROSS: That was my last point. If the placement this is the preferred location if the placement is bothersome to the board and if you look at this from the standpoint it is on Page 68 of 73 Page 69 O April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing the west side and that's where the closest neighbor is. If the board feels a better location it would be more inclined if it was located somewhere else please indicate that because Mrs. Droege is not married to this site. This is her preferred location but we could move it. MEMBER GOEHRINGER: Is she married to this height? MR. ROSS: The next lower height is the 42' and then you're around the size of the buildings so you might say move it to the water side of the house and if the board would feel better along those lines I think she would see clear to do that. MEMBER GOEHRINGER: Are there any around that are operating that we could look at? MR. ROSS: There are some. Of this particular make, I don't know,but I have observed and I request that the hearing be left open and I will hunt down that information and address the use issues and the more the structural aspects of it. CHAIRWOMAN: It would be good if we could actually see one but at some other location that's similar height and so on and so forth. Is there anyone else in the audience who would like to speak for or against the application? CATHERINE ZURO: I am a neighbor and I'm not directly across the street but I'm at a slight angle. I'm at 270 Petty's Drive and my main concern is I'm against this because it's dangerous. I just wanted to say that the board member brought up here a very to the point about the fall zone I'm very concerned because the street is 50' wide I have a pie shaped piece and if I'm in my garden and this thing should decide to come down I'm going to get it because when a structure is 65'high and it should fall are you going to say it can only fall 65' or it can go over the 65'when it falls and also she is not on a farm she is on a small lot it's a builder's acre, not really a true acre and she seems to be looking for a lot of variances for this and also and I have seen windmills but they are usually on farms and they mentioned they are putting them out into the water and I'm very concerned that Orient is a very windy area and being so close to LI Sound with the high winds that can go over a 100 miles an hour and just a noreaster is going to control this tower and turn it off and turn it on or whatever so I just want to say I'm against this. Thank you. CHAIRWOMAN: Yes, sir? MR. ZURO: I have a letter I want to give to the board also. I'm her husband and the property is 60' away from hers. I just want to point out the flag was a good reference if the town is 60' tall with an 8'blade that makes it close to 70' tall at the top of the blade. The circumference then is about 24' around so you now have a 24' object and I would like to point out the original C&R's were written to give homeowners who are not waterfront Page 69 of 73 l Page 70 April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing a chance to view the water. A windmill would certainly block the view and that's my can I submit the letter? CHAIRWOMAN: Certainly. MEMBER ORLANDO: Those are the C&R's of your community and one of them was hedges shouldn't be more than 4' tall so homeowners away from the water could observe the water and a windmill would certainly block my view and other properties from viewing the water. CHAIRWOMAN: Is there someone else who would like to speak? PATRICIA MOORE, ESQ: I have the whole packet so it should help. What I have provided for you is actually to begin with let me start over Mrs. Mallis is my client she is right here she is the adjacent property owner to the east she owns 10 acres on the water and her house is actually directly adjacent to the Droege house. You can see them from windows and the backyard they are directly visible to each other. What I started with are some of the issues that you raised Chairwoman Tortora the first issue is whether or not this is a customary accessory use. There is a case that I cite for you which is Presner vs. Leslie that case is probably the foremost cast on accessory structures it was decided by the ZBA in 1957 but is still a good case and it actually discusses an amateur radio tower and whether or not it is customary and accessory to a residence so that was the start of explaining what you should be considering on an accessory use and whether or not this particular tower would be appropriate on this particular property. I would respectfully disagree with Mr. Ross which is that this project is more analogous to a cell tower if you wanted to operate your own cell tower for your own cell phone that's fine but that's not customary an accessory foremost residences. LIPA may be encouraging this type of use but I represent LIPA both in Southold and'in Riverhead and they are very conscientious about zoning. If they were to come into the town with any type of turbines like this we would actually be looking for appropriately zoned properties so it is not so simple these turbines are more equivalent to commercial use and Mr. Orlando pointed out that LIPA will go they are obligated to buy any excess energy so it is not to the extent that this turbine does generate more than the house requires it will be sold that is a commercial enterprise in of itself. I also some of the issues you raised I identify in my memo. The 64'height of the tower there is a fall down radius similar to cell towers when you review cell tower applications you review very carefully the fall down radius and this particular property the setback to the sideyard the building setback is 15' I measured from a fax copy of the survey anywhere from 15-20' sideyard. The adjacent property is a lot on the subdivision map and that too would have a 15' sideyard so clearly the tower if it were to fall would be off of this property. I even question whether or not the tie downs can even be accomplished. It's not shown in the specifications as to how this is secured. That's a very important question that isn't answered in this packet. I did also research the C&R's with respect to this property. The zoning board while it's not in the power of enforcing C&R's as it is apprised they are private covenants it does help you in making a determination on character of the community. What I did is I highlighted for you it's Page 70 of 73 Page 71 April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing paragraph 4 with placement of structures those 3 paragraphs deal primarily with the placement of structures and also 4 talks about and it never really anticipates wind turbines but it covers steps, stoops, terraces, patios and chimneys shall be located on a lot within 50' of a front street line so it's building or other structures except for stoops and small encroachments have to be at least 50' from the front property line and within 15' of any side property line so that's the first step in the covenants that address some of the quality characteristics of this subdivision. Paragraph 5 speaks with respect to accessory structures which is garage outhouse outbuilding barn shed or other structure of whatever kind of nature shall be erected placed used or maintained on any lot. So you can have no separate or detached garage outhouse outbuilding should be maintained on any lot. Again the issue of what does this sit on it's not just the tower it's the pad itself so under their own covenants it just I don't believe they can place this structure in this subdivision and finally in paragraph 10 speaks with respect to the height no fences whether fabricated or growing shall exceed 4' in height and the homeowners who bought into this subdivision had certain quality controls they were relying on a wind turbine will not be consistent with the expectations of the people buying into this subdivision and finally I include this case which is solely for the proposition that it is a commercial use this equalese corp and indemnity insurance company apparently this was some kind of investment scheme and the case is a fight with respect to notes and IOU's and things like that but it was selling the investment and taking your money and investing in some of these wind turbines and generating a return. So they are considered to be an investment that will start to given the nature of the use you're going to start seeing some of these applications so you have to be very careful that if you do review these applications you start focusing in on where they are to be appropriately located. The only other wind turbine that we are familiar with is one in Orient and we have done the research we can get you the tax map number of where it appears but it is on a farm. It did not even come in for a building permit from the BD because it probably was considered accessory to the agricultural application whereas with a residence with this residence the BD certainly would be looking at it immediately. Whether or not they even came in with an application we just don't know. We know there is none of record it just is there. Whether it's legal or not we're not trying to create a problem for the farmer who's got this generator this wind turbine. It's innocuous on a large farm it is not innocuous on a 1 acre subdivision. I'd also like to point out that this particular lot while it is 1 acre more than half of it as far as the actual building area it's a much smaller building area than the 1 acre that he's professing to have and I believe I've addressed all the points if you have any questions- ANDREW GREEN: I'm speaking favor and in particular in favor of wind energy. I'd like you to consider a few things. First zoning decisions have historically taken social value and social utility into consideration. Local examples the huge steel towers on the northern part of the north fork many consider an eyesore however these high tension wires carry electricity so they've been approved. The same is to be considered true with telephone poles seen on every residential street. These aren't things of beauty but they are permitted because they have social utility. It's from this that the theory of eminent domain comes in when things are deemed to have so much socio utility the government Page 71 of 73 Page 72 ' April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing can even confiscate land for it so this is something which is inherent in zoning decisions. Some may claim wind towers are not visually appealing many including myself find them graceful and certainly preferable to the aforementioned examples I've provided and nobody can question the utility of windpower for society. If one looks at a windmap you'll see eastern_LI is the best place in NYS for a windtower and in fact it's one of the pre-eminent places in the entire country. Governor Pataki has set a goal for NYS to generate 25% of it's power for renewable sources by the year 2012. If we are going to do this wind power must be increased dramatically. Wind power has the potential for a grate deal of power for residences. My research has shown that 1 10 kilowatt system on a 40' tower suitable situated should be able to produce 2-3 times the electricity used by a 3200 sq. ft. house. Now this is produced without any pollution of any kind and it's for reasons like this that wind energy is growing energy in the entire world. When people see the benefits of windpower firsthand they will be more likely to investigate installing wind systems themselves. The more people get interested the more the price of systems will fall and it will be even more economical. Wind power is clean, safe and it's very quiet. The only plausible to object to windtowers is if one finds them unsightly. Therefore those making zoning decisions should weigh the potential social utility of wind systems against these aesthetic complaints as they have done many times in the past. Now those . were just prepared comments a few issues which have been addressed here. First of all regarding safety my research into this matter has shown that there have been very few in fact I haven't found any evidence of any accidents involving wind towers anywhere in the country in the last 3 years so I think they are probably safer than a lot of other things permitted in residences. As far as commercial use I'm a little perplexed by this talk because my understanding and I've done a fair amount of research into this is that NYS at this time does not permit net metering for wind power only for solar so LIPA will not actually buy the power you generate from wind at this time although there are bills pending in the senate and the assembly to permit this. But at this time I don't believe there is net metering for wind power. Finally just regarding customary use I'd like you to take into account that the technology for wind power has changed considerably in the last few years it has become a lot quieter it's become a lot more efficient so something which is new technology would be very difficult for it to be customary and I think zoning typically adjusts to new technology and changes with the times. MEMBER HORNING: Do you have any relationship with the applicant at all? MR. GREEN: Not at all. MEMBER HORNING: A company that's going to provide or proposed to provide the wind tower? MR. GREEN: No and I think there are certainly safety burdens which can be met. I'm speaking my reason for speaking is I would hate to see the boars sort of come out against wind towers just in general. Page 72 of 73 • Page 73 April 17, 2003 Southold Town Board of Appeals Regular Meeting Public Hearing MEMBER HORNING: You have no affiliation either with the applicant or the manufacturer of the product? MR. GREEN: I'm a resident who in the future would like to put a wind tower on my property. y t CHAIRWOMAN: I'd like to clear something up. The board is not going pass on whether or not we like or approve or disapprove of wind towers. That's really not an issue before us. The issue before us is whether it's a permitted use and if it's a permitted use does it sufficiently comply with the criteria for an area variance. The largest issue is if it's a permitted use in this particular location and there's certainly many plusses to the whole field of windpower. The real question is looking at our code does our code say yes this is a permitted use and yes it's a permitted use as an accessory in a residential zone because if you look at the code and you look under use you had mentioned telecommunications towers for example. There's 5 page of regulations regarding telecommunication towers and even a tower that is identical in height to this the regulations that must be gone through to erect that are tremendous. There is no such provision in our code for this type of thing. That's the issue not whether or not we want them in Southold. Perhaps Southold is behind the times. MEMBER ORLANDO: I also have a comment for this gentleman with regards to our safety factor I just want to educate you on a site plan that was done Plum Island as I'm sure you are aware did a major study that they were going to put many mini wind turbines on PI because as you said it's a windy location on the north east and it was turned down for safety not human safety but migrating birds. Wind towers are known to harm migrating birds. Not only is the north east windy, but the north east is know for migrating animals and these windmills are known to kill birds. CHAIRWOMAN: Mr. Ross, can we get the information we requested? We'll recess it to June 5`" 6:30pm. PILA-P a,,,Q-d Page 73 of 73 3 ZONING BOARD OF APPEALS1- TOWN OF SOUTHOLD, STATE OF NEW YORK --------------------------------------------------------------x In the Matter of the Application of MADELINE DROEGE#5186 AFFIDAVIT'OF SIGN POSTING Regarding Posting of Sign upon Applicant's Land Identified as SCTM Parcel 1000-14-2-24 ---------------------------------------------------------------x COUNTY OF SUFFOLK) STATE OF NEW YORK) ss: I, Madeline Droege residing at 885 Petty's Bight, Orient, New York 11957, being duly sworn, depose and say that: On the 9"day of April, 2003, I personally placed the Town's official Poster, with the date of hearing and nature of my application noted thereon, securely upon my property, located ten (10) feet or closer from the street or right-of-way (driveway entrance) facing the street or facing each street or right-of-way entrance,* and that I hereby confirm that the Poster has remained in place for seven days prior to the date of the subject hearing date, which hearing date was shown to be April 17, 2003. MADELINE DROEGE Sw rn to s / day r' tary P c DANIEL C.Ross *neap � &Newtftntrance of my property, as the area most visible to passersby. No.490717 Qualified in Suffolk County Commission Expires Aug.31, 0 -"L/ N-XTICE OF PUBS IC•HEAR= ;SO>✓bR M11'11APBtII SIR-629,03", _ ` a ] LD TO 1:'B©ARD ==s',u ,r U TT('E ? :;TS ::� REB:Y . r :',o";•;. :< ..' eceey_ :: .cod'e im�ttf" oaf, COUNTY OF SUFFOLK ado, .: ?�;'•"' �.`.. ) ,es CAVE ursuaiitto?Sectroii42f7" �:aftrtu` , 0 '.4 . . ?;: E OF NEW ollieLavn''Laa aril>Crliapler STATE YORK ss: 1 y(Z^aniri')�':Codeof'tler'I'o. rl`?�'cFr.g ' WWI Lise Marinace being o t8oi tligld e tlla g pnli`lii" 1-I an g duly sworn, says igain"'s,z?�villFnli �'fi'eil;':'ti.: t}ie: _ .-L 'e9ues ' °_:` that she is the Legal gg, Advertising SO JTHOLDt'T. WN',B.< Ij # ei$ec oii�lQ g ba e •' n th'e,:,, i1 �c�n Coordinator, of the Traveler Watchman, a&*APPEALS>at-:ti'e.. ouvn=Hall;. MM. a ;.., � h ,_. gg an, 53095 ;tIvlain't d� i':Oit '' Der. Ws;Dec mWL,-', -'002 BMX yJi - a public newspaper printed at Southold 'as 79 i, Southolduleyu^ Fork; tice Hof :DisaNAA �171r(i95:9'eon," iirsda A ; PPlc is ;:,prp .ose.;:.�ax:'fence - in Suffolk County; and that the notice of nl. ," ia7 `2Q,Q:3-,<,at.itl�r.:fimes;rn'gted hxce tdi�n`' rio'`0wben'Sl"ca e'` ' Which the annexed is a printed copy, has b low .of;_aspsoo -"t)ereafEer ias .E.: _.�ni. , 'si'lite :3 Ft_ P.ryV P :f :;i°Wei fiotrt; at: oO�Orc )`Tortti been published in said Traveler �;-Lr) ,r.•, : :J...:. p eler > ;3`.0a?iriw'F'i`sheis" I lai Roa Watchman"= s n i G1ul`` hl. d;'.S t 26;i J eki Wat an -Ie 2' .0"�syBe:quesfr.�foita tT ` c once each week tui r week k.- 04 ;, raid,:. ciaiExcepfl'o under Section for. ,(. 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Z`Q0 9:4$"`ib"ased' ., ,.,a �: ,.)F r: ;c,� m-: esilate c 631'.l 80° ;inihe;' •uYtcln' ,epaitai'enYs.:u.,.;II7Qni�, hlp� uz►ng::a�ipenod,.: Aa "" <..h a �, :: 5.._ t aC. 24 200 Jui,r, '.''`'=>983 L �:. �. :Not'ices Hof`'.. xirrl.- c= Y;, .,•:y yy Tortora'Chairperson M.,1.. fJ. �'e Zr,,.r./..� i.:l-F... y aJ�. ., :Dis i val';taiiir ade r;Janii .A W V� ronoses"tq;, Ga'a :;T. t r.. p -�` y '. ,J-- .,,, cri .rtr:" Sa:�.s,, , i.;�'�{.I.f. �7' ,`B:o;'ard:gf %8 00,kh"T rw the s e'ason."that th the p q. es' efese; to o r _• -- ,.. .*. e" , , >. , ' , .:."'r ;; ; : lstrcto' "'aYea>;i's. l`ess:.:' , �� �es<Gt t) LOK `Iota• s: 3'. , Yarn. ah ess" fianr7s5" 'Ef'from:ttie = "".:5 ' ues orate' Wa Mrp. - e `h 4 dwelli7'g.is' =�,;s .; v 3 �; �•, r- =de o1`is 3ed �antiis econ,—U. teti�' t :=;13{, -� ,+h e` n;:,-e� s L•o, tign:oflF, o: a1{80Kno'11 °i�elii. 00 .p=f_�•o,`. epAf• ;71e•3._ Gile,arBstoiiiEa'rce'1'1 11JJ3� 1?P rl'.T- .,loi4 .. b� 13Oia!m': ei:arid,;Lo `' �e7 <'f.•=,a Sil`# ILO:Ii = trquesfiifazrra,' :neg t ;,`r 'S,p�� al ir'ce i'oii' der~Se'ct on< =` ea-, (- Y� asi �0. _- 2. t 11F o estati h e n ' s Ges'so>iy- 26 cow_" :'e Nza,,: rjp�� q`r, . Bed,and=$reakf tilJse for'C lie .. n 'zo, se er e in and.serviri 'zoleakfa'tk tfie:r�gn, ormtngx-ro. Gros ., g. S t03' tlt. ,)s) ! ,.;r rae- & tguests� in eon���' metilonl vu "' LO Mn 5:? r2a _ ,,.. ,��t resit ce Sat? " C9�L e. tc1i OQ '- u at � - 0-' Sk�k:. , ,. °gue;.':I-,AT e! W e,414.l. .•,.r ,:,7,1 ;6'' e� 10L9s13111 • y"�i .J r<` ce q wn:pp Sne ° '1U 4;O a:m.,t1'rtli `Aie'llo#5298`- forx�a� ,Ewer, q_ a Se op{ 00_2i14' adlontt'tfie:. 01 .52.4;.` pv�y,l,1w a aparhnent's S.•4.-1 � : .Semr 25' QQ2lohce�of lYrY• i s1c esso B esalili Dlspproval: Applicant propos- edjd` glt-,ls r' NOTICE OF PUBLIC HEARING THURSDAY, APRIL 17, 2003 SOU.THOLD TOWN BOARD OF APPEALS NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, P.O. Box 1179, Southold, New York 11971-0959, on Thursday, April 17, 2003, at the time noted below (or as soon thereafter as possible): 2:15 p.m. Madeline Droege #5186. Request for a Variance under Sections 100-33C, 100-30A.4, 100-31 C, based on the Building Department's April 26, 2002 Notice of Disapproval stating that the proposed structure is not a permitted use, and that it does not meet the code's height limitation or minimum setback provisions. Applicant proposes an accessory wind turbine structure at less than 50 feet from the front property line and at a height greater than the code limitation of 18 feet, at 885 Petty's Drive, Orient; Parcel 1000-14.-2-24. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than designated above. Files are available for review during regular business hours. If you have questions, please do not hesitate to call (631) 765-1809. Dated: March 24, 2003. Lydia A. Tortora, Chairwoman Board of Appeals OFFICE OF ZONING BOARD OF APPEAL,: 53095 Main Road - P.O. Box 1179 Southold, NY 11971-0959 Emails: Linda.KowalskiCcD-Town.Southold.ny.us or Paula.Quintieri(a)-Town.Southold.ny.us Jessica.Boner(&-Town.Southold.ny.us (631) 765-1809 fax (631) 765-9064 March 24, 2003 Re: Chapter 58 - Public Notice for Thursday, April 17, 2003 Hearing Dear Sir or Madam: Please find enclosed a copy of the Legal Notice describing your recent application. The Notice will be published in the next issue of the Long Island Traveler-Watchman newspaper. 1) Before March 29th: Please send the enclosed Legal Notice, CERTIFIED MAIL, RETURN RECEIPT REQUESTED, with a cover letter and a copy of your survey (or map filed with this application) showing the new construction area, or map with details of your request to all owners of land (vacant or improved) surrounding yours, including land across any street or right-of-way that borders your property. Use the current addresses shown on the assessment rolls maintained by the Town Assessors' Office (765-1937) or the County Real Property Office at the County Center, Riverhead. If you know of another address for a neighbor, you may want to send the notice to that address as well. 2) before April 9th: Please make arrangements to pick up the sign poster, for posting at your property for seven days commencing April 9th; the sign should remain up until the day of the hearing. Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is available for the additional front yard.) If you need a replacement poster board, please contact us. 3) Before April 11th please either mail or deliver to our office your Affidavit of Mailing (form enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. (Also, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us before the scheduled hearing, If possible.) If any signature card is not returned, please advise the Board at the hearing and return it when available. These will be kept in the permanent record as proof of all Notices. 4) On April 17t", please file your Affidavit of Posting with our office to show proof that the sign has been posted for seven (7)days. If you do not meet the deadlines stated in this letter, please contact us promptly. Thank you for your cooperation. Very truly yours, . Enclosures Zonin&Appeals Board and Staff P.S. Please be sure to pick up the,poster between Apr. 4 and 90, between 8-11:30, or 2:00-3:30. Thank you. w LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, OCTOBER 17, 2002 PUBLIC HEARING NOTICE is HEREBY GIVEN, pursuant to Section 267 of the Town Law and Chapter 100 (Zoning), Code of the Town of Southold, the following public hearing will be held before the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York 11971, on Thursday, October 17, 2002, at the time noted below (or as soon thereafter as possible): 7:50 pm Appl. No. 5186 - MADELINE DROEGE. This is a request for Variances under Sections 100-33C. 100-30A.4, 100-31C, based on the Building Department's April 26, 2002 Notice of Disapproval, for the reasons that: (a) the proposed wind turbine is proposed as an accessory structure at less than 50 feet from the front lot line under Section 100-33C; (b) a wind turbine structure is not permitted under Section 100-31 C as an accessory to the existing dwelling; and (c) the wind turbine structure is over 18 feet in height, (the requirement for permitted accessory buildings and structures). Location of Property: 885 Petty's Drive, Orient; Parcel 14-2-24. The Board of Appeals will hear all persons, or their representatives, desiring to be heard at each hearing, and/or desiring to submit written statements before the conclusion of each hearing. Each hearing will not start earlier than designated above. Files are available for review during regular Town Hall business days from (8:00 a.m. to 3:00 p.m.). If you have questions, please do not hesitate to call (631) 765-1809. Dated: September 25, 2002. Southold Town Board of Appeals 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 (tel. 631-765-1809) OFFICE OF ZONING BOARD OF APPEAL; _ 53095 Main Road P.O. Box 1179 Southold, NY 11971-0959 Email: Linda.Kowalski(cD-Town.Southold.ny.us or Pa ula.Quintieri(&Town.Southold.ny.us (631)765-1809 fax(631) 765-1823 or 9064 September 25, 2002 Re: Chapter 58— Public Notice for Thursday, October 17, 2002 Hearing Dear Sir or Madam: Please find enclosed a copy of the Legal Notice describing your recent application. The Notice will be published in the next issue of the Suffolk Times. 1) Pursuant to Chapter 58 of the Southold Town Code (copy enclosed), formal notice of your application and hearing must be now mailed with a map or sketch showing the construction area or variance being considered Send the enclosed Notice CERTIFIED MAIL, RETURN RECEIPT REQUESTED, with a copy of your survey or filed site map, showing the new construction, area, or map with details of your request, by Monday, October 7th to all owners of land (vacant or improved) surrounding yours, including land across any street or right-of-way that borders your property. Use the current addresses shown on the assessment rolls maintained by the Town Assessors' Office (765-1937) or the County Real Property Office in Riverhead If you know of another address for a neighbor, you may want to send the notice to that address as well. 2) When picking up the sign, a $30 check, as a returnable deposit, will be requested for each poster with metal stand (or $15 for poster only) Please post the Town's official completed poste r no later than Thursday, October 10th. Securely place the sign on your property facing the street, no more than 10 feet from the front property line bordering the street. (If you border more than one street or roadway, an extra sign is available for the additional front yard.) The sign(s) must remain in place for at least seven (7) days, and should remain posted through the day of the hearing If you need a replacement poster board, please contact us. 3) By October 10th, please either mail or deliver to our office your Affidavit of Mailing (form enclosed) with parcel numbers noted for each, and return it with the white receipts postmarked by the Post Office. (Also, when the green signature cards are returned to you by the Post Office, please mail or deliver them to us before the scheduled hearing, if possible.) If any signature card is not returned, please advise the Board at the hearing and return it when.available These will be kept in the permanent record as proof of all Notices 4) By October 17th, after the signs have been in place for seven (7) days, please submit your signed Affidavit of Posting to our office If you do not meet the deadlines stated in this letter, please contact us promptly Thank you for your cooperation. Very truly yours, Enclosures Zoning Appeals Board and Staff P.S. Please be sure to pick up the poster between September 25`h and Oct. 9`h, between 8-12, or 1:30- 3:00. Thank you. y Southold Town Board of Appeals MAIN ROAD - STATE ROAD 25 P.O. BOX 1179 SOUTHOLD, L.1., N.Y. 11971 TELEPHONE(516)765.18M FAX NO. (516)765-1823 APPEALS BOARD MEMBERS GERARD P.GOEHRINGER,CHAIRMAN CHARLES GRIGONIS,JR. SERGE DOYEN,JR. JOSEPH H.SAWICKI JAMES DINIZIO,JR. ACTION OF THE BOARD OF APPEALS Appl. No. 3849 Matter of CIPITELLI BROS. REALTY. Varianca to the Zoning Ordinance Article XXIII, Section 100-239d, A.1, for permission to construgto one family dwelling with insufficient setback and within 100 feet.lrom Long Island Sound in this R-40 Zone District. Location of Property: 90 Petty's Drive, Orient, County Tax Map No. 1000, Section 14, Block 2, Lot 2.4. tit WHEREAS, a public hearing was held and concluded on September 21, 1989 in the matter of the Application of CIPITELLI BROS REALTY, under Appeal No. 3849; and WHEREAS, at said hearing all those who desired to be heard were heard and their testimony recorded; and WHEREAS, the Board Members have personally viewed and are familiar with the premises in question, its present zoning; and the surrounding areas; and WHEREAS, the Board made the following findings of fact: 1. The premises in question is located along the east of Petty's Drive, Town of Orient, and is identified on the Suffolk County Tax Maps as District 1000, Section 14, Block 2, Lot 24. 2. This is an application for Variances from the Zoning Code Article XXIII, Section 100-239d A.1, for permission to construct a one family dwelling, proposed construction will be within 100 feet of the Sound. - t Page 2 - Appl. No. 3849 Matter CIPITELLI BROS. REALTY Decision rendered October 12, 1989 3. Article XXIII, Section 100-239d A. , requires all building located on lots adjacent to Long Island Sound and upon which there exists a bluff or bank landward of the shore or beach shall be set back not less than one hundred (100) feet from the top of such bluff or bank. 4. The subject premises for the one fanily dwelling is. known and referred to as being built within the building envelope, as identified on the site plan from Ward Associates, also a copy of the Survey from Roderick van yl, Dated 4/17/89. 5. In considering this application, the Board finds and determines: (a) that the circumstances of this application are uniquely related to the premises and its estahlished nonconformities; (b) that there is no other method for aFpellants to pursue, and placing the proposed dwelling in any other location on the premises will require other variance relief; (c) that the area chosen for the dwelling is not unreasonably located; (d) that the variance will not in turn cause a substantial effect on the safety, health, welfare, comfort, convenience and/or order of the Town; (e) that in carefully considering the record and all the above factors, the interests of justice will he served by granting the variance, as applied conditionally noted below. Accordingly, on motion by Mr. Grigonis, seconded by Mr. Dinizio, it was r' i T' Page 3 - Appl. No. 3849 Matter of CIPITELLI BROS. REALTY t Decision rendered October 12, 1989 r RESOLVED, to GRANT a Variance in the matter of the application of CIPITELLI BROS. REALTY as applied under Appeal No. 3849, SUBJECT TO THE FOLLOWING CONDITIONS: 1. That there not be any construction thatincludes decks, swimming pools (Building Envelope), not be any closer than 60 feet to the top of the bank. Vote of the Board: Ayes: Messrs. Goehri ger, Grigonis, and Dinizio, (absent Serge Doyen, Fishers island and Joseph Sawicki) . This resolution was duly adopted. df GERARD P-. GOEHRINGER CHAIRMAN RECEIVED AND FILED BY THE SOUTHOLD TOWN CLEFE DATE I I-a8-ZS HOUR P.tt - IJ Tovm Clerk, To—n of Southold OFFICE OF BOARD OF APPEAL; 0`-(t 7 Southold Town Hall 53095 Main Road C Southold, NY 11971 765-1809 tel. r 765-9064 ZBA fax. REPLY FORM Dated: . TO: �a-.�-�-�—L C- ��-a e� S Ellozl / ( ) Your application is incomplete for the reasons noted below. ( ) It is requested that the following be forwarded as soon as possible (within about 7 days, if feasible). The advertising deadline is 22 days before the meeting date and the information is necessary for review and advertising purposes. You may forward the information by fax at 765- 9064, however, please send the original by mail. Thank you. ( ) The appeal was not filed within 60 days of the decision of the Building Inspector. ( Missing information - please see missing information checked below. Please submit all the documentation, together with information noted below. If you have any questions, please call us at 765-1809. Thank you. Information requested: ( ) Notice of Disapproval issued by the Building Inspector after his/her review of this particular project map. ( ) Check payable to the Town of Southold totaling $ ( ) Signature and notary public information are needed. ( ) An original and six prints of the map were not included. (Preparer's name and date of preparation to be shown.) s f ruc#ure Setbacks must be shown for the subject dig to all property lines, with preparer's name. (`rpr"`rs) sets of a diagram showing the e height (from natural grade). ( ) Ownership Search back to April 23, 1957 for the subject parcel and all adjoining parcels, certified by a title insurance company, and insuring the Town for$25,000. ( ) Copies of all current deeds and tax bills of the parcels back to (4 Other: ✓ Q/LQlla C /, a-oo a)