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HomeMy WebLinkAboutZBA-06/05/2003 HEAR SOUTHOLD TOWN BOARD OF APPEALS TRANSCRIPT OF HEARINGS JUNE 5, 2003 SPECIAL MEETING (Prepared by Jessica Boger) Present were: Chairwoman Lydia A. Tortora Member Vincent Orlando (recused at 7:05 pm) Member Gerard P. Goehringer Member Ruth D. Oliva Clerk-Typist Paula Quintieri Absent was: Member George Horning(Fishers Island) PUBLIC HEARINGS: 6:30 p.m. Madeline Droege #5186. (continued from 4/17/03) 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. (See Minutes for Resolution regarding request of both Daniel C. Ross, Esq. and Patricia Moore, Esq. in letter 6/5/03 for postponement to September 11, 2003). 6:45 p.m. App. No. 5264—MICHAEL PISACANO. 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 conformed to the minimum lot requirements set forth in Bulk Schedule; 2) Lot was approved 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 1000-113-07-19.11. (See Minutes for Resolution to advertise Appl. No. 5361 for July 10, 2003, canceling the hearing for this evening.) 7:05 p.m. Mary Zupa #5266 — (continued from 3/20/03) Applicant requests Variances under Sections 100-24B and 100-32, based on the Building Department's October 30, 2002 Notice of Disapproval for construction of a single family dwelling. The reasons stated in the Notice of Disapproval are: 1) the construction of a single family dwelling on 2 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings a nonconforming 75,687 sq. ft. parcel in the R-80 District is not permitted; 2) the lot is 1 not recognized, and its use is a marina, and 3) the construction of a single family dwelling would constitute a second use. Location of Property: 580 Basin Road, Southold (Paradise Point); Parcel#1000-81-16.7. CHAIRWOMAN: Is someone here who would like to speak on behalf of the application? MEMBER ORLANDO: Also, Madam Chairwoman, I'd like to make a statement before we begin this meeting. Since our last meeting, I've received information showing my father-in-law has joined Mr. Zupa in a lawsuit against Paradise Point (PP). And at this time, I feel it would be best for both parties and the board that I recuse myself at this time in this matter. ERIC BRESSLER. ESQ: We certainly respect your opinion as a matter of law. We don't see the need. But if you feel the need, then we respect your decision. We are, after the last hearing, I felt we had pretty much said what needed to be said. We've introduced the documentary evidence that we think supports the application. Unless the board has any questions, or there's anything else that's going to come up on behalf of the objectants, we are willing to stand on the record. CHAIRWOMAN: Member Goehringer? �1 MEMBER GOEHRINGER: What? CHAIRWOMAN: In response to Mr. Bressler. MEMBER GOEHRINGER: I thought we were going on to opposition, and then we're going to see what develops there. Then if we have any specific questions regarding this hearing, we'll go from there. All right? CHAIRWOMAN: Fine. Is there anyone who would like to speak against the application? STEPHEN R. ANGEL, ESQ: Stephen R. Angel, Esseks, Hefter, and Angel, 108 East Main Street, Riverhead, NY. I have a few comments to make, and I represent Paradise Point Association (PPA). I have a few comments to make. The first one has to do with an opportunity to respond to a vast amount of documentation that was submitted to the board since the last hearing. We came down to, one of the people from my office came down to the file, looked at the file today. And apparently, in addition to what was submitted on March 20t",there was a substantial submission dated May 15, 2003, which included a memorandum from Mr. Bressler, and voluminous exhibits, and also a letter dated July, June 2, 2003, which was received by the board yesterday. In this letter, among other things, there was sort of a demand that you act immediately. Now, I would note that none of these documents were sent to me. The only way I found out about them Page 2 of 17 3 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings was to come down and look at the board's file. I had not had an opportunity to really review them carefully. I didn't know that they were being submitted. And as you know our, my appearance in this matter, and the opposition of my client the PPA was well known. I also would like to note that even before these documents were submitted on behalf of Mrs. Zupa, I had made a submission at the board's request of pleadings in the case that I'm involved in which is Zupa, Zupa, and Miller, against PPA. And I transmitted that by letter to the board. And in that letter, I mean, I copied my adversary, and I just assumed that the same courtesy would be afforded me. So to some extent, I've been blind-sighted today. And, as you probably know, better than the people in the audience, the submissions dated May 15 and June 4 are not just one or two pages. They are pretty substantial submissions. I don't think I need to give you a copy of my letter. It's in my file. I have copies here if you'd like them. And it shows the copy to Mr. Bressler. Now, I also, I can't help but comment on a phrase contained in the letter submitted by Mr. Zupa in support of his wife's application dated June 2. And it's on page 2. And in that he makes the argument that since he's a full time resident, and presumably I don't know which ones of the members of the PPA's are summer residents, his comments should be given greater weight by the board in it's deliberations. I wonder whether it would be appropriate for the Town Board to consider some sort of ordinance amendment that would grade people's comments so they could be put on a level of perhaps 10-0, depending on your birthright, or your length of time in the community. Now I think that this should be a relatively simple case, but it's been very, it's been really complicated by a whole bunch of issues that have been presented to you for a - determination. I've tried to analyze the legal issues. And I think that I've analyzed r essentially three. And one is, is the board precluded from giving relief on this application, on the Zupa application that was submitted? It was our position, that I expressed in the last hearing,-that because of the dual use you found in your August 1995 determination that this is sort of an inappropriate application because it seeks to amend that prior determination in some fashion. Now, that could be resolved by another application to come in acknowledging the dual use. In other words, you could come in before you, and ask for a variance. And acknowledge that there is this marina, or boat basin use that attaches to the property in question. The next question, is this a residential building lot? Given whatever approvals, or setoffs, or whatever, was done back in 1981 by the Planning Board (PB). I would ask, I looked through the file, and I noticed that you had made a reference to the PB. And the PB is looking to this issue, and the PB has a meeting scheduled for this coming Monday, at which to address it. And I would request that we await the determination of the PB. In my opinion, I looked at this issue again after I read some of the memos and letters that were submitted in the interim this morning, and this afternoon, and I'm not convinced that when the setoff occurred in 1981 that this lot was created as a residential lot. The definition of subdivision that's contained in all of Mr. Zupa's communications to the board gives an exception to a one residential lot setoff, whereas what happened in 1981 was there were, I think, a 3 lot setoff, and only one was clearly designated as a residential property. At least that's the way it seems to me. And that was lot 17. The other sort of new argument is that pursuant to ordinate section 100-24A, the fact that there was a deed creating this parcel in 1981 exempts this from the requirement of a subdivision. There is a provision to that in the code,but I don't Page 3 of 17 4 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings think there's a single and separate in the record where you could make that determination. And I don't think that determination has, it doesn't appear to have been made. And I don't think we have enough information in the record to do that. But that could be solved relatively quickly. Now, those, I think, are the three issues. As I said, the three issues are, you know, is it proper to give relief on the application you currently have before you? Is it a residential lot? Oh, and the third legal issue is a very obvious one. Is a variance appropriate under the 267 standards? But what has happened here is that the case is blown up. And a whole bunch of collateral issues are brought before you for determination that are potentially very damaging to our client. One of them is an attempt to cut off right to traverse the property, or at least go across the property towards the jetty that the client maintains. The second is the attempt to stop the use of the boat basin under some interpretation of the zoning code, or nonconforming uses. And the third is to somehow that prove the town owns the land, and the water, and the boat basin. And not the PPA, which has a deed, and has been paying taxes on it. The cutting off of access to the jetty is an issue that's involved in the lawsuit brought by the PPA against Mrs. Zupa by Mr. Speiss who's sitting here, Jim Speiss. And I'm led to believe that there's going to be both a hearing and an argument on a motion to dismiss the lawsuit next Wednesday, June 11 before Judge Catterson. The issue of stopping the use in the boat basin, the marina, or the boat use in the marina, is to some extent a superfluous issue. But that is a very fundamental issue for my clients. And actually today I went through several iterations of the Southold town ordinance beginning in 1957 and running through to date. And I'm not too sure, I mean it seems to me that the only thing that's become a regulation of this type of marina, a marina that does not charge people money, a club marina, h appeared in the code that was adopted at the end of 1971. The '57 code has no prohibition. The amendments in '58 dealt with marinas where people had to pay compensation for boat slips, not clubs. And both the, the '57 code had an exception and allowed residential as part of, in the residential area, actually allowed clubs, beach clubs, that sort of stuff that would contemplate this. Now as far as the legal ownership of the boat basin, I really think that's way beyond the jurisdiction of the board. I think that the appropriate venue for determining jurisdiction, determining ownership of land anywhere whether it's under water or not, is an action in court which has not been brought in this case, believe it or not, at least not yet. And that could either be brought in Supreme court or county court under the real property actions and proceedings law. Not before you. And, also, I should point out that Mrs. Zupa, who's raising the argument of ownership of land under water, I'm not too sure is standing to raise it. I mean her claim is it's either the town's property or Paradise Point's. Her claim is it's town's property. Our claim is it's Paradise Point's property. But there's this concept called standing. You got to have, to have some interest to the issue. And the issue is who owns the property? I don't think she makes the claim that she's an owner. The only other thing I would like to, well, at this point I think that I would request, based upon what I said before, that you know, it's our opinion that based on the application before you, this application should be denied. But I'm not going to hammer at that. I would like the opportunity to have a copy of these voluminous documents provided to me. Or if they won't be provided to me an opportunity where I can come here with a $100 check, or a $150 check and have copies made. And I can promptly respond. I think I can elucidate the issues from our client's Page 4 of 17 5 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings t position. I think this has become a very controversial matter. And certainly to foreclose us from making comments upon voluminous records, under these circumstances, and then claim that it has to proceed very quickly, is not an appropriate position for an applicant to have. Thank you. CHAIRWOMAN: Is there someone else who would like to speak, uh, against the application? ROBERT SCALIA: My name is Robert Scalia. I reside at 4550 Paradise Point Road, Southold. My family and I have been residents of Paradise Point for 49 years. My father was one of the first members of the PPA, and one of the founders of the PP Corporation, which is the original owners of this lot and the other lots in question. As a teenager, I used the boat basin as a swimming hole, fishing hole, and a safe place to keep our boat. My children used the basin for fishing, eeling, and as a place to use our boats. I've kept boats in this basin as small as 16' and as large as 41'. Our family has always participated in and contributed to the maintenance of the basin and the cost of building both the jetties, maintaining the docks, and the dredging of the basin. During the past 49 years I have been there, the PPA members always use the road and pass the traverse, what is now called lot # 1, which is the property involved in this hearing. We use the property for dredging maintenance and for a turnaround. We used it for storage of dredged materials and for bay access. We pay for and maintain the safety light pole on property. We, in short, use that as part or our basin, as part of our community. Fast forward ahead to 1999 and the entrance of the Zupas from NYC and CT. During the last 4 years, they have entered into a campaign of bullying and legally intimidating their neighbors, the PPA, and the Southold Town Trustees. They have obtained an order of protection against a 70- year-old neighbor. They have erected a 6' stockade fence effectively eliminating the winter waterview of an 80-year-old widow. They have had the Southold Town Police department threaten to arrest neighbors who have used the same path and roads they have used for the past 50 years. They have filed a criminal charge against the PPA for trying to solve, in good faith, a runoff problem. They have filed suits against the Southold Trustees. And, I believe, intimated that board into holding up our dredging to the point that boats this years cannot enter or leave the basin at low tide. They have intimidated the Southold Town Trustees by, into issuing some sort of a conditional building permit for the property that this board, the ZBA, has deemed unbuildable given the present usage. Therein lies the row. If the Zupas are successful in bullying, intimidating and threatening the boards into destroying the PP boat basin, which we have had for 50 years or more, they can take this lot that they bought at a distressed price, and then turn it into a real estate bonanza for themselves at the expense of their 23 other neighbors. For 50 years, the residents of PP have had a decent community; paid for our own roads, run our own boat basin. We haven't asked Southold Town to pick up our garbage, plow our roads, dredge our basin. For 50 years we have built and contributed to our little community. And the four years the Zupas have lived here, they have not paid dues, have attacked their neighbors, and have tried to tear down the community that we have built. This matter is the subject of two lawsuits in the Supreme Court, as Mr. Angel said, at the present time. There are issues of ownership, title, and easements that cannot be judicated Page 5 of 17 6 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings this evening. The judge has proposed compromises that the Zupa's have rejected. I f respectfully submit that the ZBA should stick to the 1995 decision regarding this t_ property. Nothing has been changed to induce any change in that properly rendered decision. We believe the Zupa's arguments are laced with nontruths, half truths, conjecture, exaggerations, and shallow and erroneous legal arguments. Please do not be stampeded by a barrage of papers and inaccurate rhetoric. Let the court decide if the parameters have changed. Thank you. CHAIRWOMAN: Is there someone else who would like to speak in opposition? MARY ALBERI-PINKER: My name is Mary Alberi Pinker. My mother is Helen Alberi here. She's the 80-year-old woman whose waterview was blocked by Mr. Zupa's fence. CHAIRWOMAN: Could you state where... MS. PINKER: 4345 Paradise Point Road. ' I'm just up here to say "I'm not a lawyer". I've been to many of these meetings, and I've heard a lot of legalistic sophistry from Mr. Zupa's lawyer. And I feel that he is abusing the law here. Just as he abused his neighbors by calling the police on them. He uses, has used, the power of the police to enforce the law against us. And now he's using the town regulations, which are designed for the safety of people, for the well being of the community. I'm sure you people don't make rules to damage property owners, to hurt their interest. You want a good functioning community here. And yet these people come in here and they take the rules, they take the regulations, and they twist them. They pervert them. They turn the law into a mockery when it should be an instrument of justice in this world. And I agree with Bob Scalia. I don't think you should be stampeded. I think you should step back from this and take a long hard thoughtful look, and think about it. What kind of community do you want in the future? Do you want a community where people come in and step on their neighbors because they want to cash in on property? I work a half-mile from ground zero. I think about those men. They went up into those towers. And then I come out here, and deal with this? That's all I have to say. I'm sorry. CHAIRWOMAN: Is there anyone else who would like to speak against the application? HELEN ALBERI: I'm Helen Alberi, the 80-year-old lady who bought property on PP in 1964. And we bought it at the time because we hoped to have retirement home up here. CHAIRWOMAN: Mrs. Alberi, whereabouts on PP do you live? MS. ALBERI: I'm at 4345 Paradise Point. CHAIRWOMAN: Do you happen to know 4345, could you tell us what lot number that is please? MS. ALBERT: Bob, can you help me with that? I'm terribly sorry I don't. Page 6 of 17 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings CHAIRWOMAN: That's okay we can figure it out. Thank you. MS. ALBERI: We decided to build our home. And we personally built it in 1984. And with the delight of retirement and having a peaceful, joyful, retirement. And in 1995 someone else came along, and decided they wanted this unbuildable lot. So my husband, who is deceased, who is deceased, and Mr. Cucuru, in 1995, we went through this whole fagade. And we went through it, and you gave us a very wonderful judgment that it could not be residential besides a boat basin. Because first place you can't even turn a fire truck around there. And if you have trouble turning a fire truck, you could lose a life in a minute. And you graciously decided that it was the purpose of a boat basin. And that was in 1995 with Mr. Cuddy, we went through it. And, I feel, how many times do we have to go through this? We are doing it again because somebody decides she wants, they have, at this point, they have cut off one-third of PP. That was the lst thing he did. He came in. And he set up pine trees and 150 fort apache fence. I don't know whether I'm behind a fort apache fence or the Berlin Wall. He has cut that sweet little boat basin. He has destroyed my whole view. And I bought that property with the assumption that I was going have a view of the boat basin. We've had a boat in the basin for 12 years. We have paid our dues. I have never violated anybody up there. I have not violated anyone. I have never stepped out of turn with anyone up there. And I feel that this is a thing that should not happen again. I feel that I really, we all need a little peace up there. And you can't ignore your gracious approval of us in 1995. You still have to remind yourself that -� we went through this ordeal before. Thank you. CHAIRWOMAN: Is there anyone else in the audience who would like to speak against the application? Is there anyone else in the audience who would like to speak for or against the application? Mr. Bressler. MR. BRESSLER: After Mr. Angel's most erudite presentation, I feel constrained to address the issues he's raised with the board, but at the outset I must note something extremely curious about the proceedings this evening. Mr. Angel invites you, on the one hand, to stick to the issues. I remember inviting a similar invitation at the last session. Yet most of what we've been hearing tonight is exactly the opposite. So let's get back to the issues before you. As to the issues before you, let's address them one by one as raised by Mr. Angel. First of all, with respect to the submission there is no doubt that at the last hearing everybody was aware that we were going to make a submission, and such as submission was made. To come here the day of the hearing, and say "I looked at it a few hours ago" doesn't cut the mustard with me. As to Vic Zupa's letter, the difference between full time and part time, we're not creating different classes of people, although listening to some of the objective comments apparently if you come from NY or CT, maybe you are in a different class. The only point of that comment is to point out the fact that impacts are different depending upon the nature of your residency. If you are there full time you are obviously going to be impacted a greater percentage of the time. And that's a pretty obvious concept. Now to the legal issues raised by Mr. Angel. He first raises, without identifying it, the issue of res judicata. It seems clear that doesn't apply Page 7 of 17 8 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings here. That's a different application before you. There was an application for a variance. There were setback variances required. No such request of you is made in this particular proceeding. It is plain that res judicata doesn't apply here. Reason one, reason two. CHAIRWOMAN: I'm going to stop you right there Mr. Bressler, the board hasn't made that determination yet. I said, the board has not made that determination yet. MR. BRESSLER: No, I'm making the argument to you in responding to Mr. Angel's comment. I would hope you had not, but if you had, that it would be my way. No, I was certainly of the opinion that you were keeping an open mind until the close of all the evidence, and clearly we don't believe res judicata applies here. The nature of the application is different. The factual proof before you is different. The actual issues that are brought up for a full and fair litigation before you are different. I think that's something you should look at. And I think you have to make a determination. As to whether or not it's a residential building lot, I don't think there's any doubt it's a residential building lot. The documents are before you. All of them, all of them are before you. We've all looked at them. And maybe Mr. Angel has the ability to look at those documents and see something about recreation in there. But I can't. There's not a word in there about that. The argument is made up of whole cloth. The documents are what they are. Lot 17 is buildable. Our lot is buildable. They were setoff at the same time, same resolution. I invite you to look at the documents. There they are. What the PB is going to bring to this, I can't_imagine. You have the entire file. They've looked at it twice. They want to look at it again. I don't see the purpose. You have the entire file before you. CHAIRWOMAN: I will clarify that right away. We asked them to give us all information that they had on this file. The file is very lengthy. It's very long. As you well know Mr. Bressler, we are under a little short staff at town hall, and we cannot simply dedicate full resources to one application. Not when we have about 100 before us at this time. So it is, rest assured, they are working as fast as they can to get this information. But I would not want them to try to put together something for us that we may or may not have in a rushed situation, and make a decision that is obviously very critical to the welfare of your client as well as to the community, based on inadequate information. So, I do want to see that information. I do want to review it, as the whole board does. That's in fairness to you as well. If it's duplicate information, so be it. MR. BRESSLER: Well, we don't believe there's anything new or different in there, but in the event there is, we'd be pleased to look at it. And we'd be surprised if there'd be anything different in there. We'd certainly like an opportunity to comment on it. As to the last thing that you said, I will get to that in a minute, as in fairness to the neighborhood. Now as to the deed, as to the deed argument, I am not aware that there's any issue as to whether or not that lot met the single and separate requirements. We are pleased to demonstrate that it does. If you think there's an issue. I don't think there's any issue there. I didn't hear any issue raised. Do we meet the 267 standards for a variance? If you reach that issue, I don't think there's any doubt about it. Page 8 of 17 9 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings CHAIRWOMAN: Let me ask you, that's one of the things that's kind of confusing. In the original application you would have either requested lot recognition or in the event that the board found that there were two uses, you had asked for an area variance. Is that request still on the table? MR. BRESSLER: Yes, absolutely it is. CHAIRWOMAN: In other words, it was not part of this submission which, believe it or not, I read every word of it. MR. BRESSLER: I'm sure you did. CHAIRWOMAN: So I just wanted to make it clear that what you are requesting is a reversal of the Building Department's determination that it is, the lot is not recognized pursuant to 10024B or 10024D. And, in the alternative, you are asking for an area variance for the two uses. Is that correct? MR. BRESSLER: Yes, and as to the first part of that when you say the lot is recognized, I take it by that you mean to include the issue that it is not subject to a marina usage as well, which the building inspector also raised. CHAIRWOMAN: He also raised the issue in the notice of disapproval that there was a prior determination that(interrupted). MR. BRESSLER: That's right. CHAIRWOMAN: On a number of other issues, which I think you kind of(unfinished). MR. BRESSLER: I think I addressed them in there. But, you are right. In the alternative, if you don't think an outright reversal is mandated, we think so plainly on the fact, given the size of the lot which is very close to what would be required, were we to find two uses. The nature of that use were you to find it to be a principal use mandates some sort of relief here. Now, as to the extraneous issues, I welcome Mr. Angel's comments to the effect that they are indeed extraneous. I recall them being raised at the last hearing, certainly not by us in the first instance. And we concur that they are extraneous. The issue of the jetty. The issue of whether those docks have a right to be there. They were extraneous in the first instance. And the issue as to whether there is a prescriptive easement across the property is extraneous to you. Those matters are before the Supreme Court. And they will be decided in the Supreme Court. The issues before you, narrowly framed, although I certainly don't agree exactly with the characterization or certainly the outcome urged by Mr. Angel, I do agree that, in general, the issues are as described as laid out in our memo. That's what's before you. As to what's maybe fair, getting back to the point I raised before, as to what may be fair or not fair to the members of the community who claim to have some rights, with respect to a prescriptive easement, Page 9 of 17 10 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings will be decided by the Supreme Court. Whether or not the docks have to go is something that is going to be decided by the Supreme Court. If you decide that Mary Zupa can build a house there, that determination in no way determines whether or not those extraneous issues are going to be resolved one way or the other. CHAIRWOMAN: That's (interrupted). MEMBER GOEHRINGER: Can I respond to that? MR. BRESSLER: It does not, as a matter of law. I still have to slug that out with Mr. Spiess and Mr. Angel in the Supreme Court. MEMBER GOEHRINGER: Judge Catterson, in an issue that was different than this one, down in Laurel, plotted an entire road from Peconic Bay Boulevard all the way to the DiBartolo property, which was a nature of a decision that we made reopen the hearing tonight, okay, some two years ago. How do we know, how do we know, Mr. Bressler, what Judge Catterson is going to do? Very simply there may not be enough property after Judge Catterson's decision to render enough buildable property on this piece of property. MR. BRESSLER: And if that's the case, the Building Department will duly act. What you have before you... MEMBER GOEHRINGER: The Building Department will give you another Notice of Disapproval. MR. BRESSLER: That's correct. That's correct, but what you have before you, you must act upon. Let me also say that we have no idea where those law suits are going. We never had an idea where those law suits are going. And let me just state for the record that what Mr. Scalia said is just plain wrong about what happened in those proceedings. But I'm not going to go into that because what happened in the Supreme Court happened in the Supreme Court. And I don't think anybody needs to be privy to that. But suffice it to say what's in front of you is in front of you, and you make the determination. And if Judge Catterson rules something else then we'll have to deal with that. But what's before you is before you, and to that extent I agree with Mr. Angel. What is before you is before you, and that's what has to be determined. And as far as the rights of people to maintain something there, that's the subject of a litigation. As to whether or not they get to walk through the middle of the property is the subject of a litigation. What's before you is whether or not a house is appropriate on this rather large waterfront lot. That's what's before you. CHAIRWOMAN: That's one of the things before us. The other thing that is before us is there a dual use on this property; is there a marina use; and that, whether or not this board determines that that determination was made in 1995 and is therefore barred by the doctrine of res judicata. Page 10 of 17 11 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings __. MR. BRESSLER: Well, you have to decide that to get to my application. All I want is a house. And you have to decide whatever you think you have to decide to get there. And if you think you have to deal with the issue of res judicata, then you'll have to deal with it to get there. I suggest you don't. You say you haven't decided it,but you will. CHAIRWOMAN: We are plotting through everything. That was the purpose. MR. BRESSLER: Exactly. CHAIRWOMAN: And I think I made that very clear at the first hearing that we wanted to be able to get all of the information to make that determination. MR. BRESSLER: Absolutely, but ultimately, the issue is do we get to build a house there? Because we are now sitting with the approvals necessary to do that. And we are sitting here before you, last in line, waiting to go back to the Building Department. We have been to the Trustees. I respectfully disagree with any characterization of what happened before the Trustees. But we ended up with a permit. And now we are before you, that's all. CHAIRWOMAN: There are a couple of things that I would like that I did not see in here. There were filed C & R's with the 1963 subdivision. I'd like a copy of those in their entirety. MR. BRESSLER: We have no objection to that. They are not at all relevant to this. But you are certainly welcome to look at them, and decide that for yourself. CHAIRWOMAN: That I would like to see. We do not have that. (Off the record conversation between Mr. Bressler and Mr. Zupa.) MR. BRESSLER: I'm advised that in the June 2nd submission you will find the covenants that were filed with the individual deeds. We're not aware of any C&R's that were filed as such with the subdivision map. CHAIRWOMAN: This is the June 2na? MR. ZUPA: Yes, and a series of deeds. MR. BRESSLER: Aren't there a series of deeds in there? CHAIRWOMAN: Could you speak up for the record, please? VICTOR ZUPA: Victor Zupa, 4565 Paradise Pt. Road. With my submittal yesterday, I gave you four deeds that directly were from the Paradise Point Corp. (PPC) to owners on Page 11 of 17 12 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings the basin. One was to a Mr. Monticello, which covered the lot that my wife and I _ presently have our home on. That was a 1981 deed. That contains the restrictive covenants, covenants and restrictions. Another is a conveyance in 1966 which is to Henrietta Elfers, Carrie Elfers that contains C&Rs. CHAIRWOMAN: What about-the C&R's that were filed with the County of Suffolk? MR. ZUPA: There were no C&R's filed separately with Suffolk County. CHAIRWOMAN: With the subdivision? MR. ZUPA: No there were not. The subdivision was done separately in 1963. And subsequently as the owner, PPC sold off lots, they would include C&R's in the individual conveyances. CHAIRWOMAN: The original subdivision approval was subject to C&R's though. MR. ZUPA: If it was subject to C&R's they were not filed with that subdivision map to our knowledge. I mean, I've checked. I've seen subdivision. I've seen the approval with the county. And I've checked through all the deeds. And, in point fact, not all the deeds in that subdivision, which by the way don't include the other side of the road where Mr. Scalia and some of the people who are objecting live. Those particular properties the C&R's only were applicable to those in which the deeds were included. Mrs. Alberia has i C&R's. The Monticellos had C&R's. And the house that we have our home on, we have a separate lot with a tennis court on it, which a variance was granted some time ago. That lot does not contain C&R's. Nor does Mr. Perricone's lot contain C&R's. Nor does the lot across from us. What I'm trying to say is that there was no uniform filing of C&R's that were applicable to everybody. CHAIRWOMAN: There are no C&R's on this lot then? MR. ZUPA: No, there are none. CHAIRWOMAN: Then why(interrupted). MR. ZUPA: There were conditions of conveyance, when I did the contract negotiations that were that they not contain C&R's. And there is no master filing, as there normally is in a development, such as the one you would think this was, a master set of C&R's, which somebody says is applicable to a particular conveyance. They were done individually. And some people decided they wanted to put a pool in, so they said, "I don't want C&R's on my lot", and they weren't included. MR. BRESSLER: So the answer to your question is no. This lot, to our knowledge, is not subject nor is it a title lot. Page 12 of 17 13 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings CHAIRWOMAN: There were C&R's on this lot before. MR. ZUPA: Absolutely not, not pertaining to the ones PPC raised. There are covenants going back to 1920 dealing with no oyster shells can be stored on the property. I have a title report. And we've done exhaustive search through several title companies and they are absolutely... CHAIRWOMAN: I have a copy of a title report from Mr. Miller's application in 1995. And in that title report it does show a C&R for an electric easement so I, I'm confused. MR. ZUPA: I thought you meant a C&R with respect for the development. There is a C&R with respect to an electric easement. CHAIRWOMAN: And there's also an easement over the property. This is from a prior title. MR. ZUPA: You are absolutely correct there is an electric easement. MR. BRESSLER: I thought you were talking about C&R's. There is an easement. And in fact the PPA has a deeded easement. That's certainly true. MR. ZUPA: As Mr. Curcuru does as well. He has an easement with respect to a driveway. So there are easements on the property. But the C&R's that were used on 80% of the properties within the '63 subdivision are not on this property. That was a condition of my contract. I would not have those covenants. They are not uniformly enforced within the subdivision, and I would not have those in my deed. I have a title policy here that shows `insured without any C&R's.' MR. BRESSLER: If you were referring to easements, the answer is, yes. If you are referring to the C&R's then Mr. Zupa's answer pertains. So I'm not sure exactly. CHAIRWOMAN: I was referring to the fact that there, in the 1963 there are notes. And as I say that's one of the reasons that we do want to get all of the information from the Planning Board. That they had requested that C&R's be filed with the subdivision as was common practice at the time. MR. BRESSLER: I don't know what happened, but if the Planning Board comes up with something our title company will be most enlightened. Did you have another question? CHAIRWOMAN: No. MR. BRESSLER: Now, a couple other comments. There were certain references made to certain other issues I'd just like to deal with very briefly. There was an issue as to, there was an issue as to dredging. The Trustees moratorium is what it is. The Trustees have that under advisement. It would appear that dredging, in the town of Southold, Page 13 of 17 14 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings except to the extent that there's an application for extension of an existing permit, is not permitted under the Trustee's moratorium. CHAIRWOMAN: Were we given authority on that,by any chance? MR. BRESSLER: No, you weren't. The Town Board (TB)was given some authority. CHAIRWOMAN: On the waiver provisions. MR. BRESSLER: On the waiver provisions, but unfortunately the TB, in it's wisc.om, granted waiver provisions only for structures that were in imminent danger of collapse. CHAIRWOMAN: I haven't seen a copy of the local law yet. MR. BRESSLER: But, that's again, an extraneous issue, and it is what it is. And it's for the Trustee's to deal with. As to the various civil and criminal disputes that the parties have had, the record speaks for itself. If protective order was obtained, well a judge must have thought that it was warranted, or he wouldn't have done it. So, I don't want to say anything more about that. It seems to me, that in an effort to get this thing closed, since the board is of a mind, notwithstanding our position on this, to take input from the, further input, from the PB. What I would like to do is get a date from you. Mr. Angel has asked for the opportunity to respond. And given the board's position, with respect to }, the PB. I'm presuming he will have that opportunity. And, what I'd ask is that you set a date so we can get some finality on this. Giving everybody one last opportunity to comment on whatever's in the record, and close the hearing. And at that time, and start, and start the period running. CHAIRWOMAN: Okay, Mr. Bressler, it is common practice, as you know, you've been before this board many, many times, it is common practice that information that's presented to the board is also copied to the other attorney. That is a courtesy that you're well aware of, and, actually, you've been very good at doing in the past. MR. BRESSLER: Well sometimes, it's (unfinished). CHAIRWOMAN: I would have to ask why that wasn't done here. I wasn't, frankly, I wasn't aware that it hadn't been done. MR. BRESSLER: Sometimes, it's a rule that's honored in the breach. We've had opportunities to go through the ZBA files in this case, and we find we've not always been made privy to everything that's been submitted on behalf of the objectant. So if the board wants to issue a direction with respect to both sides we'd be happy to... CHAIRWOMAN: We will do that as we speak MR. BRESSLER: We'd be happy to comply with that. So that nobody is caught short. Page 14 of 17 15 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings CHAIRWOMAN: Well, it would also save our office a lot of time and effort trying to take in something like this and make copies of it at 25 cents a page, quite frankly. Yes, I would like you to make a copy of this for Mr. Angel, I would like all submissions copied to both attorneys. Mr. Angel, all of your submissions, all of your memorandums, all submissions, copied. MR. BRESSLER: All of his people's submissions as well. I mean he's representing a group. I don't want him to say "well, people are submitting things on their own". I think they should go through him so that we have an opportunity to respond to them. CHAIRWOMAN: He can only account for the people that he is directly, you know, representing. As you can only account for the people you are representing. MR. BRESSLER: He's representing PPA. And the members are here making these submissions. And I don't want to be put in an unfair situation here. I think it's only reasonable that if his members are going to put something in, that you know, we'll give him ours if he'll give us his. CHAIRWOMAN: Is that agreeable, Mr. Angel? MR. ANGEL: It's agreeable. But you can swear me in, but those comments that were made today were not past before me. I had no idea what these individuals are going to say. I mean certainly if somebody wants to make a submission, and discusses it with me, and that submission is made, I will give it to Mr. Bressler. But I can't account for an individual, who I don't even know,making a comment here before the board. CHAIRWOMAN: I think you recognize that Mr. Bressler, don't you? This is in the context of a public hearing. So, I think you are fully aware of that. MR. BRESSLER: I think that representing an association though, that the association can take steps to make sure that while we provide things, I don't have to keep running up here. I mean, the PPA is governed by a series of trustees or managers. They have voted or not, as the case may be, to retain these folks. And I think, I think I don't want to have to keep running up here, so. And everybody who's here, maybe that word can be passed down from management, that things could be passed through Mr. Angel. And if something slips through, well, so be it. But at least someone's going to make the effort. CHAIRWOMAN: Are we all on the same plane, on this? MR. ANGEL: I fully expect to submit everything, I mean, I thought that's what we're doing beforehand. If I'm submitting anything, I'll take care of it. I just, as you well know, I mean I can't control anybody who lives in the area. But certainly anything officially from PP is coming through me. And, certainly, Mr. Spiess is here tonight. I heard the stage whisper. And he will certainly comply with the same request. If he Page 15 of 17 16 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings submits something either on his own, or on my behalf, it will copied appropriately to Mr. Bressler. CHAIRWOMAN: Let's set a date for a new hearing and, as a matter of course in this hearing, all submissions, all, everything, must be submitted by 4, no later than 4 pm the Friday prior to the Thursday public hearing. There will be nothing accepted after that date. There will no comments on anything after that date, except at the public hearing. Okay? When is the next date we have? CLERK QUINTIERI: The special meeting? CHAIRWOMAN: Which would be, on what date? CLERK QUINTIERI: 7-10. CHAIRWOMAN: Okay 6:45, July 10. I'll make a motion to adjourn this to 6:45, July 10th MR. BRESSLER: Madam Chairwoman, did you say July 10? CHAIRWOMAN: Yes. 'z MR. BRESSLER: I'm going to be out of town that day. If you could possibly accommodate us with something either a week before, or the week after? CHAIRWOMAN: We don't have any meetings then. The next meeting would be July 24". MR. BRESSLER: Please. CHAIRWOMAN: We're going to have to say about 2:30. I can't give you an exact time, because we do not have the agenda. Everyone will be notified when we set the agenda, when we can set the agenda, but it will be about 2:30 approximately on July 24th. Is that agreeable? I'll make that motion. Motion carried. SEE MINUTES FOR RESOLUTION. S. Sachman and A. Quadrani #5302. (continued from 5/15/03) Based on the Building Department's October 1, 2002 Notice of Disapproval, applicants request a Variance under Sections 100-33C and 100-32 to locate an accessory swimming pool as an accessory structure at Page 16 of 17 17 June 5,2003 Southold Town Board of Appeals—Transcript of Public Hearings less than 50 feet from the front lot line, at 4705 Nassau Point Road, Cutchogue; Parcel 111-9-9. (See Minutes for Resolution regarding applicant's May 30,'2003 request for adjournment.)_ 8:00 p.m. End of hearings. Prepared by Jessica Boger from tape recording. l�,Pivn Page 17 of 17