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HomeMy WebLinkAboutZBA-04/03/2003 HEAR SOUTHOLD TOWN BOARD OF APPEALS SPECIAL MEETING TRANSCRIPT OF HEARINGS HELD APRIL 3, 2003 (Prepared by Jessica Boger) Present were: Chairwoman Lydia A. Tortora Member Vincent Orlando Member Ruth D. Oliva Member Gerard P. Goehringer Paula Quinteri PUBLIC HEARINGS: 6:47 p.m. CHARLOTTE DICKERSON#5256—(continued from 2/6/03) This is a request for Variances under Section 100-239.4 and 100-33C,based on the Building Department's September 3, 2002 Notice of Disapproval, for: (a) a proposed new location of a dwelling, replacing the existing building, with a setback at less than 100 feet from the top of the bluff the Long Island Sound, and (b) a proposed accessory building in a side yard area. Location: 4630 Blue Horizon Bluffs, Peconic; 74-1-35.51. CHAIRWOMAN: 16' from the rear property line and 36' from the top of the bluff? MR. DICKERSON: Yes. CHAIRWOMAN: So on this you're showing 20' from the rear line and I'm trying to figure out how you'd manage to- MR. DICKERSON: Remember the L-shaped portion of the structure to the east? You asked if I'd even it off with the front of the house. CHAIRWOMAN: That's how you got the 4'? MR. DICKERSON: That's where that section went out 12', now it would only go out 8', so we'd cut off 4' off the front of that, so we gained 4' in here and then we had to move because the structure would be located right in the middle of where the LIPA pole is and we'll have that moved to the rear of the property. CHAIRWOMAN: Once we have concluded this you will prepare a survey before we finalize this. MR. DICKERSON: I'll have Mr. Aihlers on the job and send down some new surveys for you. There was a question about the house being occupied. The neighbors to the west Page 2 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing indicated it hadn't been occupied for like 10 years and I have a copy of the closing statement. I have all the original papers from the closing statement. I didn't make 6 copies of this,but it's the bill for the closing statement itself that indicates that the buyer reimbursed us $3366 for the year 2000 because it was rented for the entire summer season of the year 2000 and I think I wrote down the names of the renter with his work number and his apartment number in NYC. He called and asked us to rent it again in the 2001 season and we declined because we wanted to start to renovating and move the house and have it ready for our own use. You also asked if I took any pictures of any events that we might have had there. These 2 sets of pictures were taken by my daughter. I'm not a picture taker,but this was in June of 2001 and these were in May 2001. CHAIRWOMAN: Just give the board members a chance to look at these a second, okay? MR. DICKERSON: I think the neighbors to the west are very concerned that all we were going to do is move this dilapidated structure back and try to occupy it in it's present condition. Just for the record and so the board knows I wanted to tell you that I bought 2 buildings in Mattituck over the last 10, 12 years and 1 was in an unoccupied Exxon gas station on the corner of Wickham Ave. and Main Rd. in Mattituck and we turned that into an insurance office completely renovated the building and now it's a credit to the location and Dr. Notaro is the present owner of the building. I also bought the building directly across the street which was an old Bohacks supermarket on the south side of the road and it hadn't been touched in quite a few years. And I think we turned that building into a credit to the community. It's presently occupied by the Reeve Insurance Agency and Peconic Bay Medical Care on the east side of the building. So we plan to completely refurbish this building and make it look entirely different than what it is but it would be in the same footprint if the BD will go along with it I would like to try to preserve some of the historical elements of the building,but I think that's probably within the BD's purview I have to go by what they tell me to do. CHAIRWOMAN: Have you had any further discussions with the neighbors? MR. DICKERSON: No. I went up in the middle of the winter when it was snowing real bad I see he put in a cattle fence along this property. 4'high wire fence with a 12' opening. It doesn't bother me to have the fence there because we can shield it off from our property,but I do feel sorry for the neighbor to the west, Mr. Dina who has a deeded ROW over the Wick's property and they have a 12' cattle gate across this cattle fence and if he was concerned about the appearance of our renovated cottage, that didn't add to the neighborhood I don't think. MEMBER GOEHRINGER: In light of the 4', I find that extremely positive because then you don't crowd that rear property line. It's not really rear, it's really front, side, whatever you want to refer to it as. And as you know at the prior hearings, I supported the amount of work you have done on this piece of property and I think you gave us a figure in excess of $50K in reference to re-nurturing the bluff,bulkheading the toe of the bluff and that can only further enhance the stability of that piece of property so bearing that in mind I have no further questions. Page 2 of 33 Page 3 April 3,2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. DICKERSON: That was one of the first things we wanted to do was get the bluff restored and put a bulkhead in and we finally got that approval from the DEC and the Trustees. We went ahead and the work is completed. MEMBER GOEHRINGER: You are the only one down there where the bulkhead in that general vicinity, right? MR. DICKERSON: The neighbor to the west has a bulkhead, Mr. Dinas. MEMBER OLIVA: I'm just happy at least you're at 36' from the bluff, I don't think you can go back any further. MR. DICKERSON: Actually it's a little more than 36 - 6 or 8" or a foot more, so I think it fit into the area and it keeps it 20' off the south line and more than 36' from then crest of the bluff. MEMBER OLIVA: What type of plantings have you put on the bluff to hold it in? MR. DICKERSON: The DEC required that we plant beach grass the entire length of the bluff and also put in some other different things. Virginia creeper and- MEMBER OLIVA: Poison ivy is wonderful. You may not like it,but it does hold it in. MEMBER ORLANDO: No other questions from me, Mr. Dickerson has done everything that we have requested. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? BETTY CONSTANTINE: Betty Constantine, I'm here to represent Mrs. Wicks and we wanted to wish Mr. Dickerson many wonderful summers in that bungalow. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? KENNETH HOLMAN: Kenneth Holman, I own the parcel to the east and I'm very happy there's going to be some positive work done on the cabin. CHAIRWOMAN: Are the board members satisfied that the information requested is all in? MEMBERS: Yes. CHAIRWOMAN: I'll make a motion closing the hearing reserving decision until later. We need the survey ASAP. Within 30 days, because we'll hold the decision until we get the survey. So pending receipt of the survey within 30 days. Page 3 of 33 Page 4 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing PLEASE SEE MINUTES FOR RESOLUTION 6:59 p.m. GARY GERNS, as contract vendee (Thomas and Annette Jordan, Owners) #5245—(continued from 2/6/03)This is a request for a Variance under Section 100-244B, based on the Building Department's October 9, 2002 Notice of Disapproval concerning a proposed new dwelling with a front yard setback at less than 40 feet. Location of Property: 1680 Brigantine Drive, Southold; Parcel 1000-79-4-25. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? We did get a letter faxed to us saying Mr. Gems would not be here with no further explanation tonight. This is the 3`d postponement on this hearing or 2"d, I'm going to make a motion to recess this hearing without a date. 7:01 p.m. PAUL DAVIS #5270—(adjourned from 2/20/03)This is a request for a Variance under Section 100-30A.3 based on the Building Department's October 2, 2002,Notice of Disapproval amended October 28, 2002 for a proposed reduction in a lot area of Lot 1000- 48-2-31.1 from 20,168 sq. ft. to 18,557 sq. ft. and proposed reduction in lot depth from 159.97 feet to 174.97 feet. The remaining Lot 100-48-2-33 will increase in are from 5,625 sq. ft. to 7,313.55 sq. ft. and will increase in width from 50 feet to 65 feet. Location of Property: 1025 Ninth Street and 235 Linnett St. Greenport. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? MR. DAVIS: I'm not exactly sure what I need to do at this point. CHAIRWOMAN: Why don't you just get up and tell us a little story. I don't mean to be sarcastic,but when we first looked at this application we saw 3 lots and then we said these lots don't match the other lots, then we finally began to figure out what was going on so that's why at least I didn't maybe you can tell the board members. It's fairly clear to me. MR. DAVIS: I purchased a small lot in Greenport, 50x112 and in the cleanup process the next door neighbor offered to sell me a portion of his lot next door. We agreed to 15'. At which point I thought it would be very simple to buy 15'however I felt I had to apply for a subdivision so to speak and I've merged lot numbers from the adjoining lot, a couple of surveys, title searches, every detail you have requested I think I've accomplished. CHAIRWOMAN: What we have let's try to keep it simple and you correct me if I'm wrong. What is happening is you are taking the 15' from your neighbor's property. Your neighbor's property is going to become 1 lot, and you're going to have 1 lot so actually what we are doing is reducing the degree of nonconformity because what was 3 lots is now going to become 2 lots, correct? MR. DAVIS: No. What was 3 lots will become 1 lot that would be on the east side. Page 4 of 33 Page 5 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Let's see- you're going back even further than I am. I see what you're saying. Right now on the tax map it shows as 33.1 and 32 that's going to become 1 lot and your lot 33 and you're going to take the 15' from that what you are referring to as 1 lot and that's going to get a new tax map number. MR. DAVIS: Eventually, yes. CHAIRWOMAN: And you are going to get a new tax number or will you stay the same? MR. DAVIS: I couldn't answer that, I think I have to get another one. CHAIRWOMAN: I think you stay the same and your neighbor has to change. MR. DAVIS: My neighbor has a new tax map number at this time. CHAIRWOMAN: What is your neighbor's new tax map number? MR. DAVIS: It's on the last page of the title search. CHAIRWOMAN: I see it, is it the same number that's on the survey? It's going to become tax map 32.1? MR. DAVIS: The new survey has the former tax map number and the new tax map number on it? CHAIRWOMAN: And it shows everything as 32.1? So he'll be 32.1 and you're going to be 33. MR. DAVIS: Thank you. CHAIRWOMAN: It was very complicated initially to figure out. MEMBER GOEHRINGER: So the proposed house is going to be yours? MR. DAVIS: Correct. MEMBER GOEHRINGER: So you are going from a 50' lot to a 65' lot? MR. DAVIS: Correct. MEMBER GOEHRINGER: So your lot is going to be 65x112.57 approximately. MR. DAVIS: Approximately, yes. MEMBER GOEHRINGER: As long as I have that down pat, I'm okay. Page 5 of 33 Page 6 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MEMBER ORLANDO: No questions. MEMBER OLIVA: No questions. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? Seeing no hands, I'll make a motion closing the hearing reserving decision until later. PLEASE SEE MINUTES FOR RESOLUTION 7:07 p.m. AMELIA MENDOZA#5273— (adjourned from 2/20/03) This is a request for a Variance under Section 100-3 IA.1,based on the Building Department's November 4, 2002 Notice of Disapproval. The basis of the Notice of Disapproval is that the proposed accessory building is design for habitable living area in addition to the existing principal dwelling, and that only one dwelling is permitted on a lot. Location of Property: 38015 Main Rd., Orient; Parcel 1000-15-2-15.1 CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? MATT IVANS: Matt Ivans, Suffolk Environmental Consulting representing the applicant. I'll just run down real quick a few things. The subject parcel consists of 26.7 acres and is a waterfront parcel having approximately 515' of water frontage. The property is adjacent to a well established neighborhood to the west. CHAIRWOMAN: Could you pull the mike up a bit? MR. IVANS: The neighborhood is made up of 18 residential T arcels of approximately %z acre each a 2.6 acre residential parcel to the southeast and a 2" 30 acre parcel to the west. A 3/ acre adjacent waterfront out parcel acre excuse out parcel is found to the northeast of the property. Mrs. Mendoza proposes to construct a 1,785 sq. ft. guest cottage for the use of her parents. The cottage would consist of 2 bedrooms, 2 bathrooms and sitting area living area with an unfinished attic. I have plans with me if you'd like to see those. The proposed quest house will be 112' from the eastern lot line 97 from the I T ROW that serves this and the adjoining property to the north 320' from the westerly property boundary, 1870' from the Main Rd. and 750 from the waters of LI Sound. We suggest the construction of the guest house for the sole use of family members is not uncommon in eastern LI and is permitted by the towns of Easthampton and Southampton provided the result in density is less than the density provided in in this case the property could be subdivided under the current zoning to provide approximately 12 lots. The applicant does not wish to subdivide instead wishes to keep the land open. The applicants desires are consistent with the established local land use policy to conserve open space and limit future density. We suggest the application be approved for as applied for given the applicant's goals to preserve open space and the town's goals to preserve open space are 1 in the same. In addition, we also suggest that a decision be approved on condition that the guest cottage cannot be deeded out separately Page 6 of 33 Page 7 April 3,2003 Southold Town Board of Appeals Special Meeting Public Hearing from the main house without first obtaining subdivision approval from the PB that the use of the guest cottage be restricted to family members only and the guest cottage may not be rented. And I'm here to answer any questions. CHAIRWOMAN: In the town of Southold, there is only 1 dwelling unit permitted per lot. The structure you have proposed is a dwelling unit by design, by nature, by definition. We do not have a guest cottage which is why you were asked to fill out the use variance and I know you did answer some of the questions,but essentially, it's a 2nd dwelling unit is what the BD has said. Maybe it's permitted use in the Town of Southampton and maybe it's permitted use in Town of Easthampton,but it is not a permitted use in the Town of Southold. A couple of quick questions I'd like to ask. It is a large piece of property and assuming it's a guest cottage, why would you want to construct a guest cottage so far from the principal building? How far is it from the principal building? MR. IVANS: Well over 500'. I'm not too sure about the design layout why they did that but- CHAIRWOMAN: If it's a guest cottage, I'm trying to figure out why you would place it 500' from the main house. MEMBER ORLANDO: They don't like their guests? MR. IVANS: I could say something about in-laws,but I won't. Again, this is the design that was brought to us and again we were just coming before the board we thought this would be a good thing instead of just subdividing instead it's a unique, the application itself is for us extremely unique. CHAIRWOMAN: Is that 1700 sq. ft. lst floor? MR. IVANS: I believe it's 1-story anyway. Actually, let me see- CHAIRWOMAN: The floor plans look like 2 stories anyway. MR. IVANS: Actually it's probably 1 %2 story. Would you like to see the plans? CHAIRWOMAN: Yes we would. You're not showing a 2nd story here. But you are showing a 2nd story on the elevation. It looks like you may be going up when you raise the dormer on one. You don't have copies of this for the board members? MR. IVANS: No. MEMBER GOEHRINGER: You didn't advise the applicant or the applicant didn't suggest or there was no conjecture that you'd try to set off one lot-this entire piece- even if it was a floating lot from the PB's point of view knowing right well if they went to subdivide the property sometime later, that lot could be considered within the subdivision? Page 7 of 33 Page 8 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. IVANS: I would say no, the applicant doesn't know that. We are here, again, this is a unique application. We just want to find out what the board feels about it. I could go back and talk to them about that. MEMBER GOEHRINGER: In other words, there's no attempt to go the PB and discuss the possibility of setting off 1 lot? MR. IVANS: No, not at this time. CHAIRWOMAN: Is that because of the moratorium? MR. IVANS: Possibly. CHAIRWOMAN: We are not the answer to the moratorium. I'm not going to mislead you absent the one on the board who's going to tell me the contrary- this is a use variance- it is a dwelling unit by definition,by plans, by everything else and you would either have to address the standards of a use variance under law which you haven't done which requires expert testimony dollars and cents proof, dollars and cents proof that the land cannot yield a reasonable rate of return for each and every permitted use in the district including those uses which are provided by special exception. It's a very tough test. I'm trying to save you a lot of time and Gerry, do you have any other thoughts? MEMBER GOEHRINGER: You could add an addition on to the house to accommodate the parents,but you would not be permitted a 2nd kitchen. MEMBER ORLANDO: I want to comment on one of the last sentences you had made on the statement regarding you would not sell the property unless you subdivided it first with separate deeds which leads me to believe they are not opposed to subdividing the property, they are just trying to bypass the moratorium. I just get that impression because you made that comment. MR. IVANS: I don't believe they want to subdivide it anyway regardless if there was a moratorium or not. MEMBER ORLANDO: But they are not opposed to it because if they did sell it- MR. IVANS: Again, down the road, who knows. MEMBER GOEHRINGER: I'm suggesting you go to the PB regardless of the moratorium issue and discuss with them a floating setoff of just enough to encompass the square footage that they would ask for a minimally to surround this house bearing in mind that it would be relinquished and maybe modified when and if the property was either sold or a subdivision the owners of this property the Mendoza's wanted to subdivide. CHAIRWOMAN: You could do that and it would not involve us. The house is brand new isn't it? Page 8 of 33 Page 9 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. IVANS: I don't believe it's even complete yet. CHAIRWOMAN: The house is in the process of being built. I know you may want distance from your relatives, but 500'is stretching it. MR. IVANS: Can I table this until next month? CHAIRWOMAN: Want us to leave this open? It will have to be re-advertised. We will recess the hearing without a date and you will get back to us and tell us what you'd like to do. 7:17 p.m. MICHAEL PISACANO #5264—(continued from 2/20/03) The applicant has filed a request for a lot Waiver under Section 100-24A based on the November 7, 2002 (amended 11-8-02) Building Department's Notice of Disapproval for construction of a single family dwelling. The basis of the Notice of Disapproval is that this 73,616 sq. ft. parcel is not permitted in the R-80 District because it is not a recognized lot by any of the four code standards, under: 1) The identical lot shall be created by deed recorded in the Suffolk County Clerk's office on or before 6-30-83, and the lot of conformed to the minimum lot requirements set forth in Bulk Schedule; 2) Lot is approved/recognized by the Southold Town Planning Board, or 3) Lot is shown on a subdivision map approved by the Southold Town Board prior to 6-30-83, or 4) Lot is approved/recognized by formal action of the Board of Appeals prior to 6-30-83. Location of Property: 1457 Cox Neck Rd., Mattituck; Parcel 113-07-19.11 CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? PATRICIA MOORE, ESQ: Good evening I am here because I had represented the Chudiaks from the beginning and I'm very familiar with the property. Mr. Pisacano had been represented by Paul Caminiti,but unfortunately he's in Florida I felt in all fairness I should present the case and the whole process is an unfortunate circumstance that I think requires your help in seeking justice here. What I did is I put together first and foremost the first page is the applicable law that I think the Building Inspector had cited and I highlighted for you I think straight out why we believe this property was a single and separate lot that could be built on. Lot recognition says the town shall recognize a lot that is approved by the PB. This lot would not be here if not for the PB the second page I recite the chronology of events and I know I've had a chance to review your transcript from the prior hearing where I couldn't be here I was out of state and I understand it's a very confusing history. I'll start out in May of 1985 Chudiak approaches the PB and by letter says he had an agreement a long standing agreement with Mr. Zabicky, Becker, Well, and Wanat that at some point in time he would if he developed the property he would give them more land and he would do by way of the process would be boundary line agreements. The lot line changes have never been a very well codified section of our Town Code and if you read the section of the code it seems to imply that it's an informal process nevertheless, the PB when Amele Dipetris who represented him at the time approached the PB, the PB said no we want you to do it formally Page 9 of 33 Page 10 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing we want you to do it as 4 formal applications to the PB. He did that. He came in with 4 separate PB applications the file I believe you have access to so it's obvious the lot line changes were accomplished and one of the issues that came up through Val's memo was the fact that somehow or another this parcel was sterilized by the action of the lot line changes and I attach a November 6, 1985 letter from Amele Dipetris regarding the language that was agreed to be placed in covenants and that language was in fact placed in the covenants. The lot line modification let's take the first one, the one I know was done Wells. Wells was approved the Wells deed or the deed from Chudiak to Wells placed a covenant on that deed which said hey we are going to take the property, we are going to treat it as one and the one house is the development of this property. So it was a merger of the 2 just as had been planned and just as he had agreed to. There was no language in that covenant that even implies that the balance of the property was going to be sterilized. There is just no reading even if you turn the pages upside down and backwards, there is no way of reading it into the language of the covenant. So as far as the balance of the property goes there is no restriction with respect to the balance of the property. I get on to the next specific date that on Dec. 16 the PB granted the separate resolution for the lot line changes and what was occurring here was for example the Wells property 12500 sq. ft. of vacant land from Chudiak to Wells was conveyed again as a boundary line agreement. Well's property went from being a 1/ acre improved on Cox Neck to a little over a 1/2 acre on Cox Neck. It was a no brainer it made sense. The same occurred with the Wanat piece, Wells and Wanat actually completed the transfer and the properties are the way the lot line changes were approved and that's the way the property is today. To imply that what's left wasn't created by PB action just defies logic. How else are they going to do it, they did it by separate application they did it by specific application to think the PB had no knowledge of this or had no intention of this occurring, that may be fine and good but'we don't operate in the zoning code by intention. It's done by code, it's done by covenants. If you intend to do something that is not otherwise permitted in our zoning code you damn well better be careful to put it in writing and put it as a covenant because future attorneys like me and Paul Caminiti will look at the file well of course this property is a single and separate lot that was created by the PB. With respect to the Becker and Dibicki property, those 2 parcels never were completed. Ms. Becker I think from the transcript as I remember made mention of the fact that her father may have become ill couldn't consummate the transfer Dibicki was no longer a title owner his title changed hands in'82,but he didn't tell anybody about it. This Siderakis was the new owner and somehow or another Val makes a point of the fact that there was a letter in the file from Siderakis that he was ready,willing and able to close. That's very nice but that would have left a half acre parcel behind. The Chudiaks realize wait a second, I can't sell this piece and leave myself such a small piece I have nothing left to do with it. That didn't make sense. So they retained the parcel. The parcel was specifically identified parcel with a tax map number they have been paying taxes ever since. It's always been taxed it's always been recognized by the town. In fact when I got involved in it with both daughters, Mr. Chudiak unfortunately is ill. The 2 daughters are here and I started with them what feels like a very long time ago in about 2001 the first day as soon as I got a chance to review the zoning code I met with Ed Forrester and I sat down with Ed we went over all the documents and Ed had the same opinion that we all came to just about every lawyer that looked at this file came to the same conclusion that this is a buildable parcel it's what's remaining after PB action. Exhibit B is an affidavit by Ed Forrester who very kindly stepped to the plate courageously because it may it goes against Page 10 of 33 Page 11 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing Val but we had a meeting with Val and we sat dumbfounded by some of the points and some of the comments and the beliefs/ conclusions Val was coming to. It didn't make sense to us we thought well as a matter of law the BD makes the decision of whether or not one gets a permit not the planner and certainly not somebody who's telling you well that's not what the PB intended and we're looking at her and saying that may be fine and good but you don't leave behind a 1.7 acre parcel and expect it to be sterilized property rights due process a constitutional rights of property owners there are certain basic principles which are land ownership. You don't create a parkland for your neighbors 1.7 acres is not a parkland and Ms. Becker last time she was here pointed out why would we buy the property when we get it for nothing. That memo that Val put in the file if you notice it's a memo to the file. Did she bother sending me a copy certainly not because she knew how I said I disagreed with her did not send it to Paul Caminiti to my knowledge certainly it wasn't something we were all aware of it came up when Mr. Pisacano was ready to get approval from the Health Dept. He was days away in fact we had signed covenants for the property for Health Dept. purposes standard covenants. The Health Dept. was just about ready to stamp the map when the memo appears and the Health Dept. thinks it's too much of a hot potato and they send it over to the Board of Review. The Board had their hearing and has come to a decision the decision is attached as Exhibit C the decision pretty much accepts our arguments with respect to how the lot is created, recognizes zoning issues,but as far as HD issues we exceed any of the HD requirements so we certainly are entitled to HD and now he's going to be getting it. With respect to the memo I make point by point I have point 1-5 but my these are the points when I reviewed the memo by Val just some of the issues do not make sense. One issue she says is you can't have this property as 280A and they use you as an excuse that this lot could not be developed because of 280A. This is road frontage property it faces Cox Neck it is subject to a ROW we have not effected anyone's ROW. The only reason Miloski needed 280A is because they are getting access over a ROW. We own to the road. The Chudiak property takes the larger piece, the rectangular piece and fete title is taken all the way to the road so there is no 280A issue here an no requirement under 280A one of the other issues you raised is the fact that this property should have been sterilized just doesn't make sense. The parcel the lot line changes we're making other lots more conforming than they were. It made sense to grant boundary line agreements giving these property owners land. The fact that the piece that remains thank goodness it's a larger piece of property and they had the thought to retain sufficient land or I'd be here discussing with you a much smaller piece of property. The fact that Siderakis was interested in buying the land I pointed out before that was 3 years later and again leaving behind assuming that property would have been sold to Siderakis what then she made no discussion did not address the issue of the fact that Becker would have been left and then what with Becker that piece would have been sterilized at the benefit of who our client would continue to pay taxes on that property and Becker would have never been obligated to buy it there's no obligation there it just doesn't make sense. As far as point 4 is that the Chudiak piece, imagine this you have a piece of property that you could put a house on it Chudiak's piece could have a house on it today. You're not creating additional lots. You still have the Chudiak piece with the potential of one house and you have boundary line agreements you have lot line changes giving those very small parcels extra land. You're not increasing the density there it's the same number you still count the same number of heads at the table same number of houses at the table you're not there's no effect there and I've already mentioned the fact that how this memo came about and how upsetting it was to find a memo Page 11 of 33 Page 12 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing where it's being used against you with no opportunity to respond in a unilateral veto of the development of this property and finally Ed Forrester's affidavit which speaks for itself and recognizes the fact that the building inspector would have just made the decision when Val was making her decision that this property could not be developed Ed Forrester said of course and we proceeded under that conclusion and Mr. Pisacano as well it only started getting bounced back and forth after he came in to request to start looking into a building permit. CHAIRWOMAN: When the intended merger of the lots did not occur why didn't Mr. Chudiak simply go back to the PB and ask for an amended plan? Why did he instead proceed to put the house on the market for sale knowing full well that the PB had intended these to merge by action by deed by record by everything else assuming that something happened along the way. MS. MOORE: Let me answer. Because each application was independent individual application there were 4 applications by Val's own memo she admits there were 4 separate applications the fact that you could see them on a map doesn't change the fact that they asked for 4 independent applications. Could the PB said yes to one and no to the rest absolutely they would have had that right because each of them had to stand alone. And what happened was each the PB when you do a lot line change the completion of a lot line change is the deed that gets sent to the PB through the Assessors office or wherever recognizing the merging of the 2 parcels that's where the covenant would have been applicable- not to the balance of the property it's to the deed that goes from the Chudiak piece over to the other owner in every instance of a lot line change. That's the piece that gets conveyed and it's a recognized action, you're doing a boundary line in some towns it's called a boundary line agreement it can be in many cases it's not formal action of the PB at all it can be done informally between adjoining property owners. CHAIRWOMAN: We have Chudiak to Wells. We have Chudiak to Zabicky, Chudiak to Wanat, Chudiak to Becker and some of those just took place and- MS. MOORE: Keep in mind, it's done by PB action. The section of the code says if the PB acts you don't just create lots out of thin air in the Town of Southold they are either by PB action or by conveyances and what's left. CHAIRWOMAN: So these lots were created by the PB action and they were subject to certain conditions. Conditions that they merge. The merger took place on some of the lots on15 & 16- MS. MOORE: Keep in mind that not every application for example you have several variance applications that may or may not ever get built. The fact that you ask for and get permission to do it doesn't force you to implement whatever relief you've requested. In this instance it wasn't Chudiak that said oh you know forget it I don't want to do any of this it was the property owners who said we can't do it right now we can't do this we can't do that. Those that could, it got transferred. Those were Wells and Wanat those 2 got completed that was the balance of it to pretend that lot does not exist it doesn't make sense. Page 12 of 33 Page 13 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Is your request for recognition? MS. MOORE: I believe that's what the building inspector cited. CHAIRWOMAN: Very seriously, what is the application for because we.have an application for a waiver of merger. MS. MOORE: But the NOD says recognition of the lot and your notice I just read says lot recognition. CHAIRWOMAN: I know that. Our application is for a waiver of merger. MS. MOORE: I didn't do it, Mr. Pisacano made the whatever application I think he's gone to the next step which is exceptions the non conforming lot has a minimum lot size of 40000 sq. ft. it doesn't merge so I don't know where I didn't get involved in that I know for a fact that what the BI directed and what your own notice says and I think that's an accurate. CHAIRWOMAN: The NOD I'm just saying if you take a look at the application in the file is for a lot waiver. MS. MOORE: That's the way he interpreted it, not my interpretation. . CHAIRWOMAN: Application for waiver under Section 126 - that's what we have in the file. MS. MOORE: I guess you notice properly then because the notice you have I read-I can't answer your internal paperwork I can only answer with what I think is the relevant section and what the relief should be granted. CHAIRWOMAN: Relief under 124? MS. MOORE: 1241 think is the applicable section that the lot was created by the PB and therefore should be a recognized lot. It's single and separate and now has all abilities to be developed except for the BD directed us here. CHAIRWOMAN: That's why it's so difficult to understand because yes lots were created by the PB. The configuration of this lot was not. MS. MOORE: How else would it have been created? It's not by deed. CHAIRWOMAN: The lot in question was created by the PB as part of 2 other lots. MS. MOORE: Yes,but it's done by the PB. The language doesn't give much except that it's done this or that way it's approved by the PB by virtue of here you have a piece of property Page 13 of 33 Page 14 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing you take a piece from here and you take a piece from here pretend it doesn't exist-you can't do that- the PB has created this configuration. CHAIRWOMAN: The PB has created lots, I agree with that. Did they create this lot, no. We are going to have problems with this because I'm not sure that this does not require an action by the PB to undo what's been done. I'm not sure at all that this would fall under this exemption in any way shape or form because the PB did not create this lot that is before us today. MS. MOORE: I respectfully disagree because the PB took separate action on each of those lot line changes they most certainly did. The fact that they did not intend in they say this but that is not what is written, that is not what is said and that's not what the code says. The fact that they were sloppy and they came up with you know you have 2 board members who still remember well that's not the way zoning works, it's not to penalize a property owner for what is left behind from PB action that is completely against all zoning principals that I'm aware of. You can't treat people in this town that way. You cannot treat people that way and let my just say before we even started here Frank Murphy who was the broker for the Chudiaks at that time contacted and sent a letter and I just spoke to him today because I didn't remember this he said I sent letters to all of the adjoining property owners offering them this property and nobody wanted it. I know Frank Murphy asked me about sending letters and he remembers sending letters. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? TED WELLS: Just to get on the record, my name is Ted Wells I live at 1575 Cox Neck Road I've been there for 40 years. My property is adjoining to this. I'm one of the guys who got the lot line change. I know more about this than anybody because I'm the guy that did the legwork for Mr. Chudiak setting up these lot line changes because he was too busy he was farming he said you want this property you people you got to do this so when I had to go to plan it took me a year and a half with the PB to get to buy this property because it went into M80 which is 2 acres and there wasn't 2 acres left in this strip which was 125x500'long. He says to me-you want it, you take the whole thing if you want it I come to the PB he says you're not going to put a house there,there's enough houses we want to leave it open because you've got a natural water drainage for 136 acre farm that's on the side of it because when you put the 2 acre zoning in and started building houses up in the back from the first part he knocked off it blocked off with Artie Foster built a road, the water couldn't run like it's natural run to the big hole in the bottom of Cox Neck Road that blocked it off so now all the water comes down by us and it goes into a big hole on the back end of this property and when I say a big hole, a big hole so a year and a half they made us put restrictions in that we couldn't build a house on this property in any shape or form it was never to come back as a lot,but then what happened was Mr. Becker died and I was friendly with Mr. Chudiak like family every day I used to see him work with him and all that stuff so we have a good rapport so it's not that I don't know him because I do real good and then what happened, Mr. Becker died and while that was going on he had it surveyed before he died because there was a copy of Mr. Becker's survey because he was buying the property- Page 14 of 33 Page 15 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Mr. Becker was the one that was supposed to merge? MR. WELLS: Right but he died one night ambulance came and got him, he gave me the keys he told me lock up my house they are taking me because his wife had died a year prior to that and I locked the house up he died 2 or 3 days later. Meanwhile he already had that surveyed because he was buying it his strip and of course Zabicky had sold it to Sicerakas so when I went to Sicerakis and said hey do you want to buy the property he said yes I want to buy the property and at that time those pieces $3K a piece so when it started slowing down, Mr. Chudiak said to me I got to get rid of that property, I don't want to pay taxes on it no more see what you can do, I'll sell it to you for the same price. CHAIRWOMAN: This was when they didn't merge? MR. WELLS: Right but as soon as this started when Mr. Becker died and so forth he says to me so I went back to the PB from scratch one and said listen he wants to sell me that 300'x125'which is less than 3/'s of an acre and that's the piece that Mr. Pisacano's got. And the PB said you're more than welcome to buy it but you have to come back and you're going to have to do the same thing. It's going to be a lot line change to your property line and it's going to run that way but I'm going to tell you right now it has restrictions on it. You're not going to build a house on it. I though maybe I could build a house for my daughter there. No way shape or form I got thrown out of here twice. So I give up on it, we bought a piece of property in Laurel and built a house for her. Then about 3 years ago I was approached again the 2 daughters come to me and I know them and they said listen we have to sell the property because Dad we didn't expect him to live that long and he's up in his 90's now and he needs the money and I got along with Bill Chudiak like that so I said I knew I couldn't build on it so I gave her an offer, I figure I'll buy the damn thing and let the neighbors look at it. I know I can't build on it just leave it there, let the neighbors look at it I got all good neighbors and like I say, I've got all good neighbors and like I say I've been here for 40 years well that wasn't good enough I guess because I heard it was up for sale for$100K so I understand Frank Murphy got involved. Well Frank Murphy made some telephone calls. He didn't send letters, he called because the neighbors I have, we talk and he called up and said to them Mr. Sideraks because he got a hold of me and said if you want that piece you can have that piece behind you but it's going to cost you$50K which is 200' wide by 125' deep. CHAIRWOMAN: This was his part of the merge? MR. WELLS: Yes. You want we he can have it for$50K because he was going to sell the property he called Carol Becker and said if you want the property it's going to cost you$20K so he figured he'd get $70K out of the thing so all the neighbors know that they can't build on it and to pay that kind of money on a piece of property that you can't build on it just don't make sense and I know I've been going through this since 1986 because I'm the one that brought Mr. Chukiak down and sat right there on those 2 chairs and when Mr. Orlowski said stand up and he stood up with them and said you understand that when you made these changes, these lot line changes with the covenants you agree with it and he did so it was signed, sealed and delivered at that time. That's going back like I say I know all this I had to Page 15 of 33 Page 16 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing have a key snap made with a natural water runoff showing how much water would run down there Van Tyle had to do it at that time so I can't see how it can come back as a building lot with a house now I told the girls when they wanted to sell it I says sell it I don't care someone is going to buy it, let them buy it but they can't build a house on it because if that's going to be reversed by the PB I want the covenant in my property to come out and my mother in law wants hers out and Kevin Milowski wants to split his acre off because he's got an acre on the other side but he had to buy 2 acres from Mr. Chudiak to be able to build his house right across the street from this. So everybody around had to buy 2 acres back in 1985 and 86 to build a house now you have less than 3/'s of an acre and it's going up as a building lot. I can't see how. I just can't see how. Like I say I know this property situation from the word go and I can't say anything bad,but I'm just saying if he bought this property knowing he couldn't get a building permit, then he shouldn't have bought it. If you didn't know that, I feel for you, I really do. CHAIRWOMAN: Mr. Wells, address us. MR. WELLS: Sorry. Everybody in this town including Frank Murphy knew that you were not going to get a building permit hinged to this when you bought that when you went to closing. CHAIRWOMAN: Mr. Orlando has a question. MEMBER ORLANDO: You made a comment about a %2 hour ago when you were talking that when you went to the PB they said you could not build on the back parcels, do you have any documentation or letters from that? MR. WELLS: I would have to get the minutes from when they did all that. I also had a meeting with the same group on August 13, 2001 one week before they did with the PB and the Town Attorney, Ed Forrester, and the rest of them and we spent 2 %2 hours in there and that's what they came up with the same thing the Building Inspector he picked this book up and said I'll issue a building permit. Well he can issue a building permit for anything. How does he know if he didn't see where the house is going to be? How do you issue a building permit? CHAIRWOMAN: Wait a minute,there's something conflicting let me just get this straight- you had a meeting with the Town Attorney, who else? MR. WELLS: Valerie Scopaz I think you should have a copy in your file that memo - Ed Forrester and they had somebody in there taking notes. I don't know their name. CHAIRWOMAN: What's the date on that? MR. WELLS: That's August 13, 2001. MS. MOORE: For the record, nobody from our side or Mr. Pisacano's side was invited. Page 16 of 33 Page 17 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. WELLS: This is a meeting that I called and asked to find out when it was offered to me by the 2 daughters when I made the offer and they didn't say no they didn't say yes, then I had a meeting with them figuring I would try this one more time and if they give me a hint that I could get a building permit then I could go back to Barbara Chudiak and said look, I'll give you more money because I know then I could have built on it the same thing you did. The real problem here is you had a meeting with August 13, 2001 that doesn't jive with I mean it jives with what the PB says, but it doesn't go with what the affidavit from Mr. Forrester. MS. MOORE: I had a meeting but I never knew about this meeting that he had with the people he's talking about. MR. WELLS: The property was offered to me first. CHAIRWOMAN: There's no record of this that we have? MR. WELLS: It should be in there, yes. It's a PB town of Southold memo in file Aug. 13, 2001', Chudiak property located on west side Cox Neck Rd. Matt. MS. MOORE: Is that the meeting with Valerie Scopaz? And she didn't list you as being there? It's not your fault, it's just inappropriate for them not to included the owners of the property, the attorney or the owner of the property at that meeting. MR. WELLS: I just asked if I could get a building permit. MS. MOORE: Not your fault,nothing to do with you. MR. WELLS: I know this family, I've known them for 40 years, I've never- CHAIRWOMAN: So this meeting was 1 week before the memo from the Town Planner? MR. WELLS: Yes a week before them. MEMBER ORLANDO: By your request? MR. WELLS: Yes I called and asked if I could have a meeting with the PB and a Building Inspector to find out if I could get a building permit because Barbara and Joan both come to me and said look we are going to sell the property- We approached you to tell you we were going to sell it. CHAIRWOMAN: Order. Okay I just wanted to get the facts of that straight. MEMBER OLIVA: August 13th, the town attorney, the building inspector and the planners said you could not build on that lot? Page 17 of 33 Page 18 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. WELLS: They said if you want anything you'd have to go to the ZBA. CHAIRWOMAN: Was Mr. Forrester at that meeting? MR. WELLS: Yes. CHAIRWOMAN: Maybe we'll subpoena all of them here because there's something wrong and we're not going to sit here and tiddlywinks around and try to figure out what it is. MR. WELLS: I tried to get here last time for the last meeting but I was stuck there under doctor's care and I'm only here now because we had a death in the family and I had to fly up for it. Just on the record that's why we weren't here. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? RITA WELLS: My name is Rita Wells, Ted is my husband. I would just like to say that last fall I received a phone call from Mr. Pisacano and he wanted to talk to my husband and I said I'm sorry he isn't here can I take a message and he said well, he probably doesn't want to talk to me anyway just tell him and you also not to tell anybody that the piece of land is not a buildable lot because it is and I said oh and he said I've got all the permits I need to build a house on that little piece of property and I said from the Town of Southold, he said don't you worry about it I've got all the permits I need and I said from the Town of Southold and he said I can build a chicken house back there and I said I don't think you're agriculturally zoned for that do you recall I'm just saying I didn't think when he said his lawyers would be coming after us if we told any more people that the place was not buildable I didn't appreciate that. I just thought you'd like to hear that. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? BARBARA CHUDIAK: My name is Barabara Chudiak my father owns the property and unfortunately what Mr. Wells is not accurate. My sister and I knowing he would cause us trouble went to him and told him we were planning to sell this property we are putting it on the market I resent what he's saying my father about buying those lots and my mother was very ill. I always lived in Manhattan by the time I came home the property was sold to Wells because he was pursuing my father and my mother signed a document when she had a brain tumor so that's the situation on Mr. Wells but I just let it go and said what goes around comes around. Mr. Wells when I lived in Manhattan his daughter was calling me because they wanted to buy the property for$1 OK that's all he wanted to pay and he was pursuing my father and my father gave him my phone number in Manhattan and he was calling me and I said the property is not for sale and he wanted it for$1 OK and that's been going on for years unfortunately my father had a severe stroke this past Monday or I would have brought him with me. This is not right what's going on and I resent this. He was very good to Wells and the neighbors and what they are doing now is not right. He was very kind to them and he would not be giving something away or doing what he's saying. I resent him putting words Page 18 of 33 Page 19 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing in my father's mouth. It's not right and I resent I wasn't here when this 1 St transaction took place because believe me I would not have let it go through. My father's old and he was old then and very disoriented and people took advantage and it's not right. CHAIRWOMAN: Is there anyone else in the audience who would like to speak for or against the application? CHRIS HELLIGER: I'm Chris Helliger my property abuts Mr. Pisacano's property. I addressed you last time. I'm probably going to repeat myself on a lot of topics. The first one being the paper history on the property that the PB recognized and has in the file testimony of 2 PB members did have knowledge of the owner intent to be that of merging with existing and not for sale as building lot in future. An updated version of that is the August 13th memo and on the 2"d page the last paragraph if you wanted to read that it would reiterate that. Mr. Chudiak certainly owned a lot of property the majority of it being all to the west of that little strip of homes on Cox Neck Road and had many options to incorporate this particular piece of property in future sales which he did not and you'll be able to see that with the dates. The 1St piece of property that he chopped off if you will for residential was the Milowski property that being 19.8 on the map. Last time I didn't have the map to give you the proper numbering. At that point and time he certainly could of encompassed this piece of property on there he did not instead he make specific plans to have the covenants written up and submitted and approved apparently to the PB and I'm sure zoning approval by lawyers and PB are all taken into consideration upon that. That was after the Milowski property was subdivided then the particular piece of property where my husband and I now own was a large parcel which was subdivided into 19.10, 19.28 I believe that says, 19.27, 19.15 and 19.17. I'm not sure what the total acreage was there but once again this particular piece of property certainly could have been encompassed there also when this was sold and it wasn't done. I mean that particular subdivision mandated all those particular people on Tallwood Lane to the 2 acre subdivision. I would just like to point out on the map my property in particular encompassed that portion of the ROW and eliminated it because Nudak's who are 13&14 had ROW at the new Tallwood access so proposed ROW there was never a ROW so anyway that was my main point. He certainly had options to change his mind never did away with the covenants -left it as is subdivided that surrounding property to the 2 acre mandated zoning and we were left with that particular substandard building lot yes because it was obviously maintaining the standards for the original covenants which were on file. I think that pretty much covers that aspect of it I just did have a question of the proposed ROW because the 2 people being Wells and Wanat that did have their property lines merged with that particular property have always had access on the back end of those mergings and so that ROW can never be eliminated so they can always have access to those back entranceways so that also is a reason for the ROW not to merge with parcel 19.11 and then if there is a question after all of this the terrain as Mr. Wells has said I don't know if you've walked it but it is really several feet below grade it provides a natural drainage for the surrounding unchanged topography and I think altering the elevation in any way there would be a destructive diversion of that I don't know if you know Cox Neck at all but it has a severe drainage problem as it is so if you would just consider all these problems I just brought up and everything that's on file the neighbors would appreciate it we're all representing all the Page 19 of 33 Page 20 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing names on file there for the people who could not be here tonight and we would appreciate your decision in our favor. MS. WELLS: I just want to say that Ms. Hilliger said my father had to opportunity to sell this before you have to understand my father is a farmer and he's not a businessman nor an educated person and for the past 25 years he has macular degeneration so he has really not been able to see or really understand a lot of things so I did want to bring that up. She said he had the opportunity to be able to sell that, he couldn't. He wasn't aware of what could be done. MS. MOORE: Just 2 points with regard to the property if you look at the overall tax map you can see that this parcel remains and it's bisected on the east and west by ROW's. So it's a natural logical break in the property to say that the property as Ms. Chudiak would somehow be attached to something else it's cut up by the ROW's one to Milowski and one to the north so that's not quite accurate. I want to read I was recently at the appellate division with respect to a Southold case and the case is Iannone vs. the PB that case started out it's a supreme court case that dealt with the PB's imposition on covenants on property and their covenants on no further subdivision. The supreme court, the lower court found that the P13 had no authority in the law to place those kind of covenants on it. The town obviously objected to that conclusion by the lower court and went to the appellate division and I was there arguing that case the interesting thing was this was my clients piece of property was one where there was no covenant placed on the property that prevented it from being further subdivided even though the P13 intended that case to be applicable but from the subdivision maps and the only place that the condition could be found on it by was reviewing in thoroughly in the P13 file you might find mention of covenants that should have been submitted that were never submitted in our case there were covenants I'm going to read my next point I'll read the covenant language but the appellate division quizzed and I'm waiting to find out what the decision finally holds but the quizzed the attorney for the P13 and said how is anybody to know about a restriction essentially sterilizing a piece of property if there is no covenant on the property making it clear that it is the ultimate intention and I submit to you that's why I attached exhibit A because this clearly shows what the intention was between the parties and this was a letter to Ms. Schultz and the way the language of the covenant and all the deeds read is the parcel thereby conveyed shall merge with premises of the grantee contiguous there to on the east and the 2 parcels shall thereupon be deemed one parcel for the purpose of zoning ordinance for the Town of Southold so under present provisions of the zoning ordinance only one residence together with accessory structures may be constructed and maintained upon said 2 parcels which are being merged into one. That does not apply to anything other than lot line change the individual lot line change that parcel and that conveyance that covenant is a restriction on the deed when that conveyance is done. That is not intended or ever assumed or any reading of it whatsoever could come to the conclusion that the balance of the property has that condition, that covenant on there. It may be the intention it was poorly done if that was the intention because that is clearly not from the language of the deeds or the language of the conditions on the lot modifications so Mrs. Tortora you asked about the application of that covenant look at the language it speaks for itself which is the I can give you the copy of both deeds, I'll get them for you and I'll send them to you both the language of the Wanat deed and the Wells deed have this language as a Page 20 of 33 Page 21 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing condition. The balance of the property has no such covenant so as far as restricting a property owner as to intentions or conditions, if it's not as a covenant on the property it is not binding, it is not appropriate. CHAIRWOMAN: It's maintained that it was a setoff agreement with those properties. MS. MOORE: We are talking about 2 different things. There was originally a setoff she confuses things. There was a setoff from the parcel on the east that was between Cox Neck and the ROW and the west end. That was a setoff. That setoff which you actually looked at through a 280A application the balance of that lot. There was no such restriction as far as no further subdivision or anything else on the piece that remained. There was nothing about it. It was a standard setoff. She argued that well your own conditions of 280A therefore you couldn't build on this because your decision said any further action or any further development would require 280A that's not true 280A is only applicable if you're over a ROW it's not if you have fee title to the road so I think she's grasping for straws trying to come up with rationale for finding that this property is sterilized but it's not applicable so Milowski setoff has no application here and the covenants which is I think then she gets onto another issue with respect to the covenant language in the deeds they were implemented when the transfers took place when they actually completed the lot merger the lot line change and that sale took place there was to be a covenant on the deed of that conveyance which is the standard the way it's done today there's generally no covenants- CHAIRWOMAN: So you're saying because it didn't take place the covenant is not valid? MS. MOORE: Of course. CHAIRWOMAN: Well if it didn't take place and the covenant is not valid then I still don't understand and maybe I'm missing something and maybe we need to consult with legal council why you wouldn't go back to the PB. Why are you here? MS. MOORE: Because the PB took applications for lot line changes. They took the Wanat application, they took the Wells application, they took the other 2 applications,but they chose not to act again I come to you for an area variance I may choose not to act on the variance, I may ask for 5 variances from you on one time and only implement 3 of the 5. CHAIRWOMAN: But why aren't you before the PB? MS. MOORE: Because they don't have jurisdiction here. It's an issue of creation of the lot. How is the lot created. The lot was created by the PB by actions that they took on the other pieces. It's what's left it's a balance of a piece of property. CHAIRWOMAN: That's a stretch in my mind. MS. MOORE: I'm sorry, talk to your town attorney as far as every attorney that I've referred this to and said please am I missing something here? They said no this is what's left when you take pieces you have a piece and you take off another. What's left? Page 21 of 33 Page 22 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: I must be missing something because all I see is that the PB did these setoffs 2 of them occurred 2 of them didn't and you're saying because 2 didn't that this lot which wasn't even a lot when they did the setoff- MS. MOORE: Yes it was. It was a lot you have the lot that started out as take away V acre it was a%2 acre larger because they each got a '/ acre extra on their lot line modification so you started out with a large lot, you took and I've done multiple lot line changes from one application where you have several,maybe you can educate them- CHAIRWOMAN: Everybody's excited, let's not get excited. This lot you're asking us to a) recognize a lot that wasn't created by the PB because the PB created merged lots okay that didn't happen so this parcel ended up even if you ignore the PB and go right to lot recognition this lot did not appear this way in 1983 did it? MS. MOORE: Yes. CHAIRWOMAN: Part of it was Wells so it couldn't have appeared the same way. Isn't that correct? MS. MOORE: Maybe I'm not following you but I have to get- CHAIRWOMAN: This lot as it looks today did not look this way in 1983 did it? MS. MOORE: Pre lot line changes or post? CHAIRWOMAN: Pre. MS. MOORE: No of course not it was the result of the remainder of lot line changes. It was a boundary line agreement it could have been from this side to this side. CHAIRWOMAN: You're saying except this lot line change, yes that's valid because these didn't occur don't accept that one, that's not valid. MS. MOORE: I'm not saying accept these and don't accept these, I'm saying each of these were independent acts that the PB took on. Had they done it as a comprehensive lot modification, they should not have done it as 4 independent lot line changes. Even today they get greedy because each one is a separate application with a separate hearing separate notice the whole thing and they take each one, one by one not as a subdivision would take all the lots on a subdivision map and look at them all together. They take each lot line change as a separate application and when they did that they took the Wanat piece okay it's done we are taking this piece here you go you've got 3 pieces of paper we got Wanat is done from the bottom. Well's is done we've approved 2 more for this but it doesn't get implemented for personal reasons they just don't get done but it doesn't mean that this doesn't exist. It just doesn't make sense. Put yourself in the shoes of a property owner when you do a lot modification with your neighbor,maybe I'm just missing it here. Page 22 of 33 Page 23 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Do you have any questions? MEMBER ORLANDO: I agree with I think we need to get everyone here from the last meeting in August to determine what happened because the same people said 2 different things a week apart. CHAIRWOMAN: We just got this memo tonight and we're going to have to review it and go back over it and meet with council on it. I would suggest that if the application is for lot recognition that you submit a revised application so the application is not for a waiver of merger. MR. PISACANO: The ZBA gave me an application to fill out for this purpose. CHAIRWOMAN: Because I asked and they said that's what you filled out. MR. PISACANO: That's what I was told to ask for from the MS. MOORE: Well it's been noticed properly so the paperwork can come in to you cleaned UP. CHAIRWOMAN: Right now we actually do not have an application saying what you are requesting. MS. MOORE: Well you do actually my memo essentially tells you what it is the correct application is. I'll have him fill in the blanks. MR. PISACANO: If I did not purchase this property, the Chudiaks would be left with an unbuildable lot that they can get no money for whatsoever. It's ridiculous. MS. MOORE: And we are talking about 1.7 acres. MEMBER ORLANDO: They are all landlocked parcels. MR. PISACANO: As far as the drainage goes, the HD has approved me, the soil samples everything is good, they've approved it they've recognized it there's lawyers on the Board of Review. CHAIRWOMAN: Don't say that they did not recognize this lot. MS. MOORE: They left the zoning issue to the town-it's out of their jurisdiction. There are not lots of this size that are out there that are unbuildable that are sterilized. MEMBER ORLANDO: There are lots out there in the world landlocked that happened as a result of things. I actually saw a tax map of a lot upstate in NY that has a landlocked piece. Page 23 of 33 Page 24 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: But this is not a landlocked piece. MEMBER ORLANDO: I'm just answering Mr. Pisacano's question. I wasn't here at the last meeting,but I have a question are you building a house there for yourself? MR. PISACANO: I honestly probably couldn't put up with the neighbors. At this point I would probably build a house for somebody or sell it or if they'd like to buy it be my guest. I put all my money into this I have no money left. CHAIRWOMAN: How much did you pay for the lot? MR. PISACANO: $80K. MS. MOORE: This was not sold as an unbuildable parcel. CHAIRWOMAN: I'm saying that's a buy. .. MR. PISACANO: I have a deed. I have a single and separate- it's a building lot. MS. MOORE: When we went to market in 2001 the market really escalated we gave them time to get permits and- MR. PISACANO: And Michael Verity said he would issue a building permit once I got the permits. But them it seemed like everyone was worried about Ms. Schlickim who I believe was Mr. Wells attorney I don't know but the PB was- MS. MOORE: Everybody's covering their butt and sending it over to you. MR. PISACANO: I've gotten the run around for 9 months and it's a lot of money to have tied up. CHAIRWOMAN: It's a lot of money, I'm not unsympathetic to you on the other hand the board cannot really create lots and that's the issue we need to discuss and resolve and so let's - we're not going to resolve it tonight. MS. MOORE: You may have an answer from the Town Attorney sooner. CHAIRWOMAN: You're very optimistic. MS. MOORE: I'm going to harass him. MR. PISACANO: There was no problem with this piece of property when I approached him. MEMBER ORLANDO: That seems to be the problem it sounds like he gave Mr. Wells and them one answer and you another. Page 24 of 33 Page 25 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MR. PISACANO: I ran around for 9 months. CHAIRWOMAN: The Board Secretary had to run out but otherwise we'll have to re- advertise. MS. MOORE: No, no we don't want to re-advertise. CHAIRWOMAN: Let's try May 1st. We'll adjourn it to May 1st and get her to get a time on it. Are you planning on submitting anything else? MS. MOORE: You asked for the revised application form. I don't know until I know what you need or what you come up with. Understand I'm not being paid, I don't represent him, I'm here because in fairness this is an untenable situation I feel there's justice in this world and- MR. PISACANO: At the last meeting you asked me to explain how the lot was created I just felt that was all explained to you and it seemed like that was the only thing you needed to know, how it was created. CHAIRWOMAN: We got into names and it wasn't until we started to get information about numbers of the lots that we could put things together because everyone was talking about Milowski and Wanat and so and so but you have to understand we are looking at a tax snap and we haven't got a clue what you are talking about. We want to subpoena the Town Attorney, the Planner, and the Code Enforcement Officer because of the conflicting- MR. PISACANO: That would be your own personal meeting? CHAIRWOMAN: No it will be a public meeting. MEMBER ORLANDO: That's the objective of the next meeting to settle out what they were saying. MR. PISACANO: They have been giving me the run around. That's why I'm here. MEMBER OLIVA: Well they will be under oath. MR. PISACANO: CHAIRWOMAN: We understand but right now we have 2 conflicting testimonies on who said what. MS. MOORE: You have an affidavit from Ed so- Page 25 of 33 Page 26 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: And we have statements from the PB that are totally contrary to what Ed said and we have statements from the neighbors that are totally contrary to what Ed and so and so and so and so said. MR. PISACANO: Whenever the next meeting is I want it to be resolved that day. MEMBER ORLANDO: If they are put in a corner they will have to tell. It is what it is. CHAIRWOMAN: It's going to be adjourned to June 51h 6:30pm. 8:40 p.m. J. and J.WOODHOUSE#5218—(continued from 2/20/03)This is a request for a Variance under Section 100-30A.3 based on the Building Department's August 15, 2002 Notice of Disapproval, amended December 16, 2002 and December 24, 2002, for lot area and width of Lots 1 and 2, as shown on the lot line change map revised 11-4-02. Location of Property: 2395 Village Lane and 255 Navy St., Orient; Parcel 1000-26-1-12. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? JENNIFER GOULD, ESQ: Jennifer Gould for the Woodhouse's. I'm going to try to keep it brief if there are any questions,just interrupt me. We had a pretty through hearing last time we were here sorry you weren't here Mr. Orlando but I just wanted to say when we started you know we went to the PB 1". We went with the original idea of doing a setoff application. We were told by the PB we started in June of last year. We didn't qualify for a setoff because their definition of a setoff although it is not codified as such is that when you do a setoff you are creating a conforming lot and leaving a larger parcel which is could be further subdivided in whatever zone area you're in. So we have a 1 acre lot now a tax map lot of 1 acre. We have 2 single family dwellings on that lot. Our lot is basically I would call it the mother of all subdivisions because it's in the Orient Historic District and if you look at our supplemental act back in February we show that at one time there were 4 houses on what is now 1 tax lot because the man that acquired all this property between 1918 and 1934 he just basically bought up the block and all the houses on the block. He demolished 2 houses and created the larger house which is the Woodhouse's live in now which is on Village Lane around the corner on Navy St. is the existing another house which has traditionally been used as a rental - it's a yearly rental for the Woodhouse's now it's a separate single family dwelling that's the oldest house, it goes back to about the 1860's we think it was built and behind that house at one time you'll see from some of the old surveys was the Murray house. The Murray house burned to the ground that's why there's only 2 houses left. So it's like a guy bought the neighborhood 4 houses in the neighborhood and he's left with 2 houses and he keeps 2 houses and he conveys out in 1956 this one parcel and all along it was conveyed as one parcel the reason the Woodhouses want to separate into 2 distinct parcels recognized by the town is they can no longer afford to run 2 houses. They have to sell one house or it's going to have to come down to selling both houses if we don't do something quickly or soon. When the PB told us we didn't qualify for the setoff, of course the moratorium was coming and we knew that so when the PB we discussed you can see that we had these old lots and Page 26 of 33 Page 27 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing perhaps there was a merger and the PB said we'll give you that there was a merger go back to the BD and the ZBA because under no circumstances no matter what you do here you need an area variance because you've got a 1 acre lot and you want to create 2 '/z acre lots another argument can be made we have 2 pre-existing nonconforming lots and that whole area is nonconforming. Someone argued that we don't have to get a variance,but we're not going that route we are here for an area variance. MEMBER ORLANDO: Then the PB for a lot line change? MS. GOULD: Right. So we went the BD in August once we got this letter saying go get a waiver of merger. So I put in a lot line change application with the BD. And the BD's NOD which you have in the pack says lot line change quotes a section of the code it requires an area variance. They did not say waiver of merger was necessary so implicit in their decision was they found no merger so this was a nice surprise. I have to tell you this. I went to the code and looked at it because from my past experience I am fixated on waiver of merger because that's how most of the applications come to me. You know we have vacant land and somebody wants to split it up. But the code has exceptions in 1025C5 and that's where I felt they were coming from although they've never said it in the NOD and I know this has been a problem for this board that they never affirmatively say- CHAIRWOMAN: They've never set our jurisdiction. MS. GOULD: I think they feel they shouldn't have to be put in the position of saying why it's not a merger or why it's an exception to the merger. They just say this is what you need and no one has to hold our feet to the fire as to why it's not a merger or why it's an exception to the merger law. That's really what I think their position is they don't have to say what it's not, they are saying this is what you need they are not going to say- CHAIRWOMAN: Except for one thing, 10025 no building permit or other development entitle will be issued by the town until this section has been complied with. The BD will issue a written determination whether a property falls with an exception to the merger provision or not. It's right in the code. MS. GOULD: For whatever reason- CHAIRWOMAN: They didn't do it which is why we wrote to the BD. It's almost like fill in the blanks. We said to ourselves okay, what do we have before us? We have a lot of heresay and I'm not saying from you. Our jurisdiction no matter how you have it is appellate we are taking an appeal and we have to know is that for a lot line change? Because a lot line change can only occur if there's 2 lots. Is it for a subdivision or whatever it's for and that's why I wrote the BD and that's why we felt this application was in limbo. MS. GOULD: Well, it's been in limbo for a long time and that's why we need a decision but I don't want to beat it to death but they by not saying to us no you can't get an area variance because you've merged implicit in their decision was even though they're not willing to say it is they recognize 2 lots because we gave them the survey showing the old lot line. So it's like Page 27 of 33 Page 28 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing the glass is half full or half empty- I don't know what it is they don't want to go out on the edge,but we have to deal with that and we know we have to deal with that so what we are kind of proposing is 2 things. The first is obviously our preference that you consider the area variance application and just based on the criteria of an area variance and say subject to PB approval and let us go back to the PB and hassle it out with the PB about whether we are a lot line because ultimately we have to go back to the PB this is just a pit stop here a long one but they are going to have to say whether it's a lot line change or a minor subdivision. CHAIRWOMAN: They won't do that though. MS. GOULD: Why? CHAIRWOMAN: The corporate chairman will tell you exactly what's going to you. Here's what's going to happen. They are going to say we cannot do a lot line change unless the ZBA says there are 2 lots. Trust me, am I wrong? MEMBER GORHRINGER: That's the reason why you want the issue of the area variance. What you are saying is you are more than %2 way there when you had that determination. MS. GOULD: Right because it appears from their Feb. 20th letter to you the way the PB interpreted the BD's decision is the BD recognized 2 lots and they affirmatively state that's okay with us if the area variance is granted. CHAIRWOMAN: Then they turned around and said well if it's not 2 lots, then it's not a lot line change. MS. GOULD: But as long as we get the area variance, I think we can deal with them. CHAIRWOMAN: What are you granting the area variance for? MS. GOULD: A lot line change. CHAIRWOMAN: But you can't grant a variance for a lot line change unless there's 2 lots. MS. GOULD: Of course our argument is that we had the 19.19 lot and the code no matter what all the owners of the property did the code says if you have a house on a piece of property that is a single family dwelling of at least 850 sq. ft. that has a CO- CHAIRWOMAN: That falls within the existing lot lines- MS. GOULD: That lot was created prior to a zoning code so it conformed to the bulk rate schedule when it was created as did every other house on this lot- CHAIRWOMAN: But it doesn't have a CO does it? MS. GOULD: But the code doesn't say it has to have a CO, it says it has to qualify for one. Page 28 of 33 Page 29 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: If it falls within the existing lot lines, has an existing CO or could qualify for one- MS. GOULD: It's in the record. The size of it is on the survey- CHAIRWOMAN: But you would have to - let's go down that argument- in order to qualify for one to obtain the exemption first you'd have to have the pre-CO. MS. GOULD: I'm not following. CHAIRWOMAN: In order to get that exemption- MS. GOULD: I don't think it says that in the code, I think it just says- CHAIRWOMAN: Each lot is currently developed with a 1-family dwelling with a minimum which falls within the existing lot lines and which has a CO or would qualify for one and you cannot get the exemption until you have the CO even if you, you know we've done this before and people come in with a pre-CO,but the larger issue is this, go back to lot creation and there is no way that on the effective date of this chapter which it kicks back to which is 1983 24 goes back to 1983 and if we took a snapshot of what this lot looked like on May 301h 1983, it was one lot and the whole provisions of the lot recognition and merger of waiver law and the exemptions they are in are to exempt lots that were merged as a result of the creation of this lot not to unmerge lots single lots that have been single lots for the last 40 or 50 years. MS. GOULD: I think we are going to disagree on that we see it differently. I see- CHAIRWOMAN: That's the way we have interpreted it, the way we have implied it in other words, when they created the whole 124, 125, and 126 the exemptions in there were to exempt lots that might be caught up in this net as a result of this law. It wasn't to go back in history 30 or 40 years ago and start recognizing old subdivision lines that existed in 1919 and 1937 and really if it comes down to an interpretation of that provision, that's what it will come down to. MS. GOULD: Just based on my own experience I've had cases where if you go with the snapshot thing I would have never been able to get a waiver of merger. What I'm saying is I'd come in here with a deed with 8 vacant lot parcels on one deed and it's only on one deed but they were old subdivision vacant lots and what happened was after'83 somebody started conveying out without approvals and then they come and they ask for a waiver of merger so not everything that comes to you if you take the snapshot approach is going to be one deed or it was on one deed or 2 deeds that's what I'm saying. CHAIRWOMAN: I'm not talking about one deed at all. MS. GOULD: You're saying when you look at that parcel? Page 29 of 33 Page 30 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: At that time, yes prior to this law. In other words you're implying somehow let's look at constructural law and you're implying somehow that when the town board enacted this law that they meant for it to be retroactive to lots going back 50 & 60 years. When the board's historical interpretation of the law is that the exemption provisions and the waiver provisions in the law the specific kick back date in this law is 1983 and the provisions in here for the exemptions are meant to exempt those lots which were caught up and merged as a result of this law, not to umnerge properties that have been merged for the last 50 years. MS. GOULD: I don't agree with that but we are asking it would be a lot easier for us if we could go to Planning on the basis of a lot line change, I mean we still need an area variance, it's the same criteria, the same factors, vs. a minor sub when we are talking about 2 houses that have been in existence you know we have separate septic, separate wells for you know one house is 125 years old and the other is 85 years old. MEMBER ORLANDO: They all have CO's but the way the CO reads now, one is treated as an accessory however it's taxed as a single family dwelling, one of the exhibits shows a letter from Scott Russell that says we tax both of those houses as single family dwellings. Not as the house on Navy St. they have separate addresses. The house on Navy St. is taxed as a single family residence, not as an accessory structure or accessory building. It's taxed as a house. There's 2 separate addresses. MEMBER GOEHRINGER: It meets the 850 sq. ft. requirement which bounces back to the issue of the fact that it is able to be applied for a CO because the house is large enough to accommodate- MS. GOULD: It's carved out I think I said this last time but for the.C5 in 1997 we would be merged and I would see it as a waiver of merger. You're saying we're not even eligible for that. CHAIRWOMAN: That's what I think the BD says when the BD says this lot is not subject to the merger law, that's exactly the way I would take that. It is not subject to the merger law and it's not subject to the exemptions or anything else of the merger law. MEMBER GOEHRINGER: So let's go back to the area variance aspect. What does Ms. Gould have to do? CHAIRWOMAN: For us she'd have to apply for a minor subdivision. She'd have to amend the application for a minor subdivision because no matter how you hack it, the PB isn't going to do anything on it. We both know that. MEMBER GOEHRINGER: You mean a minor subdivision in the way of an area variance before this board? CHAIRWOMAN: Yes. Page 30 of 33 Page 31 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing MEMBER GOEHRINGER: Why don't you do that then? MS. GOULD: That's what option#2 is going to be. Obviously we would prefer you to deliberate and decide an area variance based on a lot line change,but if you can't or there are some votes to do that, our alternative is we would amend the application and ask for an area variance subject to a minor sub because it would give us some place to go. Do you see the problem it's creating for us? One, we have a moratorium so we have to go before the Town Board and ask for a waiver from the moratorium and even as difficult as that might be because the other one had vacant land- CHAIRWOMAN: I'm going to make this suggestion. It's not that we don't like you we'd like to be done with this for your sake. MS. GOULD: We don't want a continuance we don't want to subpoena him in to find out what he meant- CHAIRWOMAN: We tried to get him to do something at our March 41h letter and this is why the whole nonsense with hearsay, well what we meant when we said the merger law does not apply is we meant we are not eligible and we tried very hard to get them to change it, it doesn't change, you need to go forward with this. I think you had submitted a lot of testimony as to why an area variance is warranted for the creation of 2 lots at the last hearing and I'd make a suggestion to the board members that when they go to the PB that our board can certainly send a letter to the TB recommending a waiver from the moratorium on this because of the unusual circumstances and because it's not going to increase the density. MS. GOULD: It's not going to change anything, it's just going to allow my clients to- MEMBER GOEHRINGER: That's subsequent to us granting an area variance so let's get to that right now. MS. GOULD: Do you want to go over the factors? MEMBER GOEHRINGER: You want her to submit an application for an area variance. CHAIRWOMAN: I want her to amend it. MEMBER GOEHRINGER: You're going to let her do that tonight and that's the extent of it, then we can close the hearing. CHAIRWOMAN: Let's do it formally. The board accepts amended application for a minor subdivision subject to an area variance and we will go ahead and act on that. MS. GOULD: As quickly as you can. I'm going to ask to be put on the PB calendar tomorrow. Page 31 of 33 Page 32 April 3, 2003 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Can you give us a little letter? We'll leave yours open for 20 minutes and go out and write I wish to amend the application for a minor subdivision and area variance as stated in the previous blah, blah and then we can wrap this up tonight. We'll recess this for 10-15 minutes - is that okay? Woodhouse-Reconvened CHAIRWOMAN: Attorney for the applicant has just given us a letter dated April 3 which states regarding the appeal of J&J Woodhouse continued from 220-03 please accept this letter as an amendment to the above reference appeal requesting an area variance for a minor subdivision application at the Planning Board. Signed John Woodhouse and Jennifer Gould Esq. MS. GOULD: 9:00 p.m. PAUL AND MAUREEN CACIOPPO #5286—(continued from 2/20/03) Applicants request Variances under Sections 100-244B and 100-33,based on the Building Department's October 15, 2002 Notice of Disapproval. Applicants propose a new dwelling at less than 35 feet from the front and rear lot lines, and for approval of the existing location of an accessory garage in a yard other than the required rear yard, at 195 Skunk Lane, Cutchogue; 85-3-2.2 MR. FITZGERALD: I'm sorry to say this is a simple area variance we are talking about. It will provide a nice respite for you. CHAIRWOMAN: Where is your amended plan in the file, oh yes,here it is. We are 10' from the front line. MR. FITZGERALD: So the thought was it would seem to me that the front yard is most important to the board. I don't think the very small rear yard setback could ever be a problem because the lot that backs up on that property extends to the main road and there are already structures on that up toward the Main Rd. CHAIRWOMAN: Well you got rid of the front yard variance? MR. FITZGERALD: Yes. CHAIRWOMAN: Congratulations. You did very well, you rearranged it so there's no - and your side yards are fine and the only issue is one variance. Very good. Is there anyone else in the audience who would like to speak for or against the application? Seeing no hands, I'll make a motion closing the hearing reserving decision until later. PLEASE SEE MINUTES FOR RESOLUTION Page 32 of 33