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HomeMy WebLinkAboutZBA-07/10/2003 HEAR D SOUTHOLD TOWN BOARD OF APPEALS SPECIAL MEETING TRANSCRIPT OF HEARINGS HELD JULY 10,2003 (Prepared by Jessica Boger) Present were: Chairwoman Lydia A. Tortora Member Vincent Orlando . Member Gerard P. Goehringer Member Ruth D. Oliva Clerk Paula Quintieri OCT 2 0 2003 Absent were: Member George Horning PUBLIC HEARINGS: 7:09 p.m. Appl. No. 5381 — MICHAEL PISACANO. Location of Property: 1457 Cox Neck Road, Mattituck; Parcel 1000-113-07-19.11: This is an Appeal requesting a Reversal of the Building Inspector's amended November 8, 2002 Notice of Disapproval, based on Section 100-24(A) for construction of a single family dwelling. The basis of the Notice of Disapproval is that this 73,616 sq. ft. area is not permitted in the R-80 District because it is not a recognized lot by any of the following four code standards: 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; or 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 6-307 83. CHAIRWOMAN: Is someone here who would like to speak on behalf of the applicant? PATRICIA MOORE, ESQ: Originally I did not represent Mr. Pisacano. I had represented the prior owners, the Chudiaks. But Mr. Pisacano recently retained me to take on because I'm familiar with the case. What I've done is if you take the first piece of paper that I gave, I submitted a packet to you, which is in addition to everything else that you already have in your file. What I did is I took a tax map and that tax map has colored lines on it. What I then did is a historical history of the subdivisions of those properties. And what I identified with... 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MEMBER ORLANDO: Oh, color coordinated. MS. MOORE: I tell you, I did my homework. And yes, arts and crafts at my office today. What I did is I identified the colors next to the subdivisions, or as they are known. And that way you can follow along. To begin with, this piece of property originally, you can have one house on one piece of property, obviously. You have this property that originally had the potential to be developed as one lot. Then, let me start off with Milowski setoff. March of'84 the Planning Board (PB) created 19 .8 and, let me make sure I have the right one, Milowski, typo, I'm sorry, 20, 19.18. That's the southerly piece that is adjacent to the ROW. That lot, when it was approved, also got 280A approval from the ZBA. Your appeal #3243, that appeal was due to the fact that this lot was being served by the ROW. And they got that approval. So that's in '84. Then in '85, Simicich, Chudiak had originally owned this whole area. Chudiak had sold to Simicich, a large piece of property. That's the piece on the north. And that's the, that's highlighted in yellow. That yellow highlight, and I attached the subdivision map of Simicich with the resolution approving the subdivision of Simicich. And you can see that that piece surrounds in part, the subject property. So the PB had created the, had split off in a 5 lot subdivision. 5 lots, I believe. No Simicich, somebody is saying 4.4, I believe in this case it was 5. You're right, 4, 4 lot subdivision. I give you credit, credit is due. 4 lot subdivision. Lot #1 of the Simicich subdivision, that will be discussed in a moment because that becomes subdivided again. But the Simicich subdivision had a covenant, or the PB had imposed a covenant as you can see from the PB resolution that this property cannot be further subdivided. The applicant filed a covenant and thereafter, in '99, they addressed this property again. But let me go on in chronology. In '85 Chudiak makes an agreement with Wells, Becker, Zabicky, and is it Wanat? Yes, now it's shown on my map as Milowski. Excuse me,you said you were... CHAIRWOMAN: We have to have a very clean record here. So please do not address any of the speakers. Please address the chair and state your name for the record. I'm sorry,but we need to have a very, clear, concise, record. MS. MOORE: Thank you. I'm taking this from the surveys that I've had in my file. And the subdivision maps that I can see. Now there's been exchanges or sales through that time, so my, I show Wanat in one map and I showed Milowski on another. And I understand they are related. So thay may or may not be the case. But that's what I have based on the information that I could gather. In any case, you have the pieces that in December of'85, the PB took action on the applications. Each of these, as I mentioned the last time I was here, the lot line applications were independent applications. Each had to present a map. Each had to present a filing fee. And each had to be considered on it's own. What the PB did was they imposed a covenant on the approval that was the subject of their review that they said when the deed was conveyed from Chudiak to the potential purchaser of the parcel, whether it be Wells, Becker, Zabicky, or Wanat, that there would be a covenant that the two parcels would merge. That was done. The Wanat piece, and the Wells piece were merged, and the conveyance took place. And as you know, the Page 2 of 26 7710-03 Southold Town Board of Appeals Special Meeting Public Hearing Becker and the Zabicky piece did not get done. There was no covenant on the property. We did title searches obviously, Mr. Pisacano, he was represented by Paul Caminiti. There was a title report done at the time. There was no covenant with respect to preventing the sale of that property. It would have been somewhat unusual to place a covenant on property that until the action takes place because all of you have faced lot line changes, are familiar with lot line changes. You take a piece of property and you, in some municipalities, they don't even require PB action. They are boundary line agreements. You are giving some land from one piece to the other. And there is an exchange there. That's what occurred. And in this instance, the PB said, no, no, no, because I gave you the letter last time, which was Amelie Depetris had represented Chudiak said, listen, we're just doing boundary line agreements, agreements between neighbors. Do I have to come into the PB? And the PB said, yes you do have to come in and we are going to bless each of the transactions that take place. Well by doing that, they took action. They took action in this property and they created the additional sized lots on the Wells and the Milowski piece, excuse me, the Wanat piece. They took action on those two pieces making them more conforming. And that was appropriate, that was fine.- CHAIRWOMAN: You are referring to 1918 as the Wanat piece? Or the Milowski piece? MS. MOORE: No, Milowski is 1918. 19.8, I show on my survey as Wanat. Oh, Milowski used to be a Wanat or Wanat sold or, well, they are all local. They are related, so they'll probably clarify the record. CHAIRWOMAN: I have the records here. MS. MOORE: You do because I could not get from the PB, who was the owner. CHAIRWOMAN: I have records going back to March 19, 1984 from the PB. That record indicates that lot 19.18 belonged to Wanat at that time. And the lot that you have listed as Wanat is in fact, the owner is Milowski. MS. MOORE: I thought that was the case all along. Then I pulled out a survey from Joe Angegno, and he had now or formally of Wanat. That actually caused some confusion for me today. And I called my client and I said "Wanat, Milowski" and she believes that the Wanat and Milowski family were related in some way. CHAIRWOMAN: That may be but... MS. MOORE: For your purposes... CHAIRWOMAN: Our records are quite clear because the ZBA granted 280A access to the Milowski piece. MS. MOORE: Is that 19.8? Page 3 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: 19.8, yes. MS. MOORE: Okay, because your decision didn't have a tax map number that, I didn't find it, so... CHAIRWOMAN: It did have a map... MS. MOORE: Good, I didn't have the map. Thank you. Please correct my record to reflect that what I show as Wanat is Milowski, and what is shown as Milowski is Wanat. I stand corrected. I'm sorry. I was trying to piece the jigsaw puzzle and clarifying who owns what. In any case the end result is the same. We ended up with a merger of the lot line changes, 2 parcels to the south. And the 280A went to Milowski. And you have that from your records. What I also found is as I was doing research in this area that as you recall, my mentioning the Simicich subdivision up on the north, that created somewhat the westerly boundary of the subject property. That piece, that Simicich subdivision ended up getting subdivided again. And this, this upsets me because the PB had interfered with our development of this piece. And meanwhile, the Simicich property, in 1997, January '97, Artie Foster came in and got subdivision approval for the Simicich piece, lot 1. It's not showing on our, on the SC tax maps. The photocopy I made was of the most recent SC tax map. But the subdivision I've attached so that you would see that there's a record of it, I don't know what the, whether the county hasn't recognized some deeds, or they never did the deeds ultimately, but Artie Foster got a 2-lot subdivision where no lots are supposed to be further created. And as an inducement to the PB to allow it, he actually created a drainage area that is showing on the subdivision map as a 20K, almost 21K sq. ft. drainage area which is right next to Cox Neck Road. So their position that, you know, here you have a case where a covenant is filed of no further subdivision and they subdivide. And they treat us unequally with a condition that we not, can't develop this piece, meanwhile there's no covenant filed. So there's unequal treatment here to say the least. I think the record is pretty clear that the code which says that a lot is to be recognized through PB, if it's created by PB action. Here you have a lot that was part of, like many other farm lots in the area that's balances of pieces that get conveyed out over time. You are looking at an area of Chudiak that he owned from the `40's and `50's, 60's because a farmer in this area. Over time, pieces got carved out, and then the very final project that he was ever involved in was the handshake deal between these property owners to give them additional land. Take this property and give them additional land. Fortunately, he left behind a large enough piece of property that when Mr. Pisacano went to put a building envelope on it and to get Health Department (HD) approval for it, he meets all of the criteria he, through the board of review, he actually, and the neighbors had an opportunity, once again, to voice their opinion. The board of review granted their approval because they too said they got the memo from the PB, as you did, saying "well, we never intended to have this property developed, we expected that all of it was going to be conveyed out to the adjacent owner". But again, no covenants, it was just hearsay essentially. There's not even a transcript of records. So Mr. Pisacano has endured a great deal of stress and aggravation through this whole thing. i z He was under contract with us for at least 8 months. I think we got close to a year of just Page 4 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing getting all the approvals in place. The HD, we had, the Chudiaks had to sign covenants, HD standard covenants. We had HD that was going in the mail, we were assured it was going in the mail, and he closed. And then low and behold after he had closed within, I would say within a week or two weeks, he's notified by the HD, you know, it's getting a little hot around here. We are going to put it on for a board of review so there is a record of our deliberations, and why we're coming to the decision we're coming to. `So, and then the saga continues obviously with the town and here we are. So if you have questions, I can go back to my file. CHAIRWOMAN: Do the board members have any questions? MEMBER ORLANDO: Was the HD specific on what they spoke about in the Board of Review? What they denied, or? MS. MOORE: Well, what they did is the HD with lot line changes, they consider them subdivisions, development plans. And so the HD goes back to their `81 map and look at the dimensions of the properties in their'81 map. And if your property doesn't match the '81 map, they ask questions, how did this lot get created? This doesn't, well not created, but how did the dimensions change? Why is this not looking the same as the tax map that we are looking at from '81? Obviously this had changed because of the pieces that had been conveyed out to Wanat and to Wells. So what they looked at as a survey from Pisacano was a smaller piece than the original map that was in '81. So the reason for going to the Board of Review (BOR) was we need to get, we have to give you development approval. And the only way you can, a subdivision requires the owners of the properties to join in. These are all split up and there are no common owners. So the application to the HD was based on a record. And they said let's put it on for a hearing with the BOR, you present all of your data, all of the information, then we will waive what needs to be waived, give variances where it's needed, but give you an approval through the BOR because the regulatory division, the engineers,just look at do you meet the 100' setback, do you do this, do you do that? We did all that, that's why they were prepared to give us to give us the permit. But when the issue of Mr. Wells and I guess some other people, including the PB when they sent that memo, when they saw that memo from the PB they said, wait a second, what's going on here? This doesn't match. There are no covenants. We don't see anything. This doesn't match what our records indicate. So to protect themselves and to create a record that then, you know, we can count on as well,we did it as a BOR hearing and we got it. MEMBER OLIVA: Pat, it just seems to me, though, this lot, Mr. Pisacano is trying to buy, or has bought. MS. MOORE: No,he owns it now. MEMBER OLIVA: He owns it now, but it's almost a lot in limbo because it's never been formally presented as a lot. It's just something that was left over that never, the whole transaction... Page 5 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: I know what you are saying. MEMBER OLIVA: Property owners just didn't go through. So it's just like hanging there. MS. MOORE: If you take a piece of property that's existing, because you have a pre- existing, you have, lots that are created prior to '83 by deed, okay, we recognize, because that's what was done back then. There's lots of them in town, they finally, the code created a provision for them. If you have a piece of property, and you've got it there, if the PB takes a little chip of it, you know, and you end up cutting off a corner, and then through another lot line change, you cut off the other corner, the PB has acted. Because what they've done is when they are taking the piece from here, they are treating the balance of the piece. You can't look at it in a vacuum. You look at the whole. So what the PB, and my argument is, you can't, yes the lot used to be like this, but you PB, you approved each of the pieces that cut back the lot through separate, independent public hearing, the whole process, the whole subdivision process. So a lot line change takes on the same procedural requirements as a full subdivision, as a major or a minor subdivision. You have to make the application. You have to notice it. You have to, you know, get a final approval. And then you submit actually in the lot line change, the final step of the process is that you give them deed showing,you know, the merger of the two pieces, and then the chairman signs off, okay, you've merged it, okay, I'll sign off on it. I know kind of the problem we are having is that if this was a 100 acre piece, you wouldn't be asking me that question. You know, because you chip away here and you chip away there, the fact that's it's 1.6 or 1.7 doesn't change the fact that the lot originally was an existing legal lot. And that the PB chipping away at it doesn't nullify it's original status as a lot on the property, excuse me, as a lot in the Town of Southold. That's inconsistent. Why would anybody do a lot line change, if after the lot line change,you're considered to have sterilized the piece that you've participated in. That just doesn't make sense. Even minor subdivisions, the idea is you are piecing away to create another, you know, here you have, here you have the big piece. You are going to piece away and create 2 of these so they can put a house on each of them. That's the standard subdivision. A lot line change is a much different creature. It's just a boundary line agreement. And as I said, in the old days, I just looked at one today where, geez, the procedures to go through a simple boundary line agreement are just, are so tedious that you wonder why anybody would do it. But, you know,it's done nonetheless. CHAIRWOMAN: Let's see if anyone in the audience has anything to say. Is there anyone in the audience who would like to speak for or against the applicant? Please state your name for the record. THEODORE WELLS: My name is Theodore Wells. I spoke the last time. But that's what you were asking about, Vinny, about the Board of Health (BOH). And Chris is going to get up in a little bit and talk about this. And she's going to give you some numbers. And you're going to read that real careful and find out what was submitted to them for an application. Now just on the BOH alone, about a year or so ago, they came in my backyard, backed up and started to drop a well, 5" casing, in the corner of my Page 6 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing property and a corner of this property. So I went out and I asked him. He says "oh, we're putting in a well here". I said, "really"? I see you know where all the cesspools are. "Oh yeah, we know where all the cesspools are". I happen to know the 2 guys that work for Kreger real good. They are good friends of mine. I said "well you better get your tape measurer out, you'd better check it". So he gets out, he gets his tape measurer, and gets on the phone. Gets on the phone to his guy, Kreger. He says to Kreger, "what are Wd going to do, we ain't nowhere's near this thing, there's cesspools here". He says "drill it, drop it, we're in a hurry, get it done". Case closed. When they dropped the well there was water on Cox Neck Road. In there says if there was no water, if there was water it had to be hooked up to that property. But now there's a well in there that was already dropped. But there was water in Cox Neck Road because it runs right in front of my house. That was put in there. But when Chris gets up, she's going to give you numbers that you are going to see on there. When they submitted that, it was submitted with a whole portion of these lots that were subdivided subdivision on it. That's the BOH. The other thing that was brought about, Artie Foster. Artie Foster was the last one to build a house in that little subdivision behind us. He had a little over 2 acres of property. When he belonged to one of the boards down here, he decided, well got little connections. He said to the town, I'll tell you what I'll do, "if you let me have 2 acres to build one more.house for myself, I'll give you that property in the front for drainage for Cox Neck Road. So the town made him a deal, a pretty good deal. They got free property, right where they wanted it where the drainage would go and they could put a sump in if they ever had to in the near future. That's what happened in that deal. But he still had to have 2 acres to build that last house on, in that little subdivision. Originally it was 4, then it went to 5 because Artie sneaked another one in, on 2 acres. We have a problem back where we are because of it being a big hole. And when it rains, and water comes down there, it's terrible. As soon as a house goes up, they aren't going to let that water run in that house. They are going to bank it. When they bank it, where does the water go? Because when a subdivision, when Artie Foster put it in, it was a big hole that ran all the way across there. So he filled it in and put a drain pipe under there, which is behind Hilliker's house that runs off the farm field there. Now we have, now we have just the water coming our way. It comes down past Kevin,my mother-in-law Wanat, and so forth down that road, and comes in there. It washes out. If I didn't keep the ROW filled in,we could not use that ROW. So we keep filling it in,keep filling it in, so we can get through. If the trees are taken out, any of those trees are taken out, that's even worse yet, because now the root system is gone. Just take it into consideration. And I didn't know that you could build on a ROW, but I see they are using all the property as this building lot because there's less than 3/'s of an acre that the house is actually going on. So I mean, take this into consideration. And as far as Wanat's concerned, I'm the one related to Wanat, not Kevin Milowski. I'd like to be related to Kevin, but I'm not. Unfortunately that's the way it goes. CHAIRWOMAN: Is there anyone in the audience who would like to speak for or against the applicant? MS. MOORE: Can I address what he said, or do I save everything for the end? Page 7 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing CHAIRWOMAN: Let's save everything for the end. CHRIS HILLIKER: My name is Chris Hilliker, my property abuts Michael's property. Just a couple of things I'd like to say. Yes, the letter we got in the mail is incorrect regarding the Milowski/Wanat change of properties. So that notification was incorrect. Starting in April of 1984, Mr. Chudiak sold some property to Kevin Milowski and his wife. 2-acre zoning was already..in effect at that point in time. In May 1985, William Chudiak advises the PB that he has a long standing agreement with properties fronting the west side of Cox Neck Road, Zabicky, Becker, Wells, and Wanat. He requests authorization conveyance land to the adjacent parcels without formal application as Pat said. The PB directed him to make 4 formal applications in order for the PB to take action on the lot line changes. He gets legal representation. None of this was done haphazardly, all according to the law and informative. Mr. DePetris sends a letter on October 1, 1985 to the PB stating in accordance with your letter August 14, 1985, I enclose herewith 4 applications for lot line changes. Fee is incurred there. We understand that when approved, there will be a requirement that a covenant be filed to the effect that each of the parcels will merge with continuous parcel to the east which fronts on Cox Neck Road. And we will assume that the approval will be made conditional upon such filing and the covenants will be filed once the approval has been given. November 7t', 1985, once again, from Mr. DePetris to the PB, and this is regarding the covenants also. This particular point of interest is regarding the covenants which run with the land, which I believe is pertinent with this particular situation. In accordance with our telephone conversation today, the following is the language of the covenant which we intend to insert in any deed made by the Chudiaks to the owner of the adjacent part. And we understand that any approval by the PB of the lot line changes will be subject to the requirement that the deeds, which convey the Chudiak property contain this covenant. This covenant is subject to the following C&R's which shall run with the land. The parcel hereby conveyed shall merge with premises of the guarantee contiguous thereto on the east and the 2 parcels shall there upon be deemed on parcel for purpose of the zoning ordinance of the Town of Southold. Just to continue on, only 1 residence together with accessory structures may be constructed and maintained upon the said 2 parcels which are merged into 1 parcel. Just try to speed this up a little bit,just a little information on covenants. It's a party binding itself to the existence of a present state of facts as represented or to the future performance of some act. So it doesn't seem like there's a particular limitation on when the promise is to be kept. All land use covenants shall run with the land and continue in perpetuity unless modified or terminated in accordance with applicable law. Nothing was ever changed or modified after those covenants and lot line changes were preformed. Let me just go to this now. Now this is from the PB to Mr. DePetris. Mr. Chudiak's attorney regarding the Zabicky property December 17, 1985. Resolved that the PB approves the lot line change to add 25K sq. ft. from the property of Chukiak to the property now or formally of Zabicky located at Mattituck, subject to the following conditions. No. 1 that the property'of Chudiak be conveyed to and merged with the contiguous house lot to the east now or formally of Zabicky that only one residence together with accessory structures may be constructed maintained upon 2 parcels which will become merged into one. That the above covenants and restrictions be included in the deed and on the survey map for the lot line changes. When we are in Page 8 of 26 740-03 Southold Town Board of Appeals Special Meeting Public Hearing receipt of the amended surveys as requested in condition No. 3,the chairman will endorse the approval on the survey. Please forward 6 copies of the survey. And I would just like to note that there is a map on file from December 13, 1985. CHAIRWOMAN: That's the map, Mrs. Hilliker,that the ZBA has in our files. MS. HILLIKER: I would just like to point out that it does show the lot line changes from Chukiak to Zabicky, Chudiak to Becker, Chudiak to Wells, and Chudiak to Wanat. And it says 2 of those particular people on that lot on those changes. And it also has a notation at the top that the map of property of William Chudiak. And it says the property. of Chudiak will be conveyed to and merged with the contiguous house lots to the east, that were formally of Wells, Wanat, Becker, and Zabicky. Only one residence together with accessory structures may be constructed and maintained upon the 2 parcels which would be merged into one. That is on file. That is all I have to say about the covenants and the lot line changes. Shortly after all that was done, the other parcel, which did become Tallwood Lane, that was sold to Mr. Simicich, and he further subdivided it. And those are parcels No. 19.10, 19.29, 19.28, 19.27, 19.15 and 19.17. Again the 2-acre zoning was in effect in that point in time. This was Mr. Chudiak's final chance to leave enough property inclusive in this lot, 19.11 to meet the known requirements. And again, this reinforces his original promise and covenant, which is already dually noted. He was maintaining the warrantee of these 4 parcels to have some sort of a buffer for the future. I'd like to also just state that the PB, HD, local attorneys have all stated their opposition to this becoming a building parcel. From the PB August 13, 2001 from Valerie Scopaz, there is a notation that she does discuss the matter with the PB at it's worksession Monday, August, 6. Two of the members present were on the board during 1985. And they emphasize that the intent of the lot line applications was to merge land and expand size of existing lots, not to create new building lots. The record indicates that the subject lot on this memo, 19.11, was intended to be merged with 2 adjoining lots and not to be retained for sale as a building lot at some future date. August 22, 2001 from Wickham, Wickham, & Bressler addressing the Building Department (BD) tax lot 19.11 was supposed to have been added to tax lots 15&16 per PB lot line changes approval on December 16, 1985, Chudiak to Zabicky and Chudiak to Becker. At that same meeting, merges Chudiak to Wells and Chudiak to Wanat were also approved. And those transfers were made now tax lots 19.18 and 19.19. The PB approval has prohibited construction of a residence on 19.11 since it was added to the 2 lots which already contained residences. And moreover the property is R80 zoned. November 8, 2002, from the BD to the ZBA, there is no recorded deed of this property on record with the SC Clerk's Office. The PB has previously stated that the lot is not a recognized lot. The property is not shown on an approved subdivision map. There is no record of a ZBA decision regarding this property. Once again from the town planner to the chairman and members of the ZBA dated January 2, 2003. The PB has reviewed this memo and file and has told Mr. Pisacano that the lot line amendments were done with the intent of reducing nonconformity of existing lots, and not to create a new building lot. Once again from the office of the town planner, the date is January 7th, 2003 and this is to the acting chairman of the HD, Health Services, rather. The attached material is prepared for the PB on August 13, 2001. The PB wishes to go on record as opposing any variances on this property. PB office, April lst, 2003 Page 9 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing from Bennett Orlowski to Linda and the members of the ZBA. The PB did not authorize the creation of this parcel as a separate building lot. The PB, by request of the owner, intended to allow the property owner to sell his property in 4 separate parcels to adjacent property owners for the purpose of merging with pre-existing lots. And once again, the notification from ZBA, BD's denial, BD's Notice of Disapproval (NOD) for construction of a single-family dwelling. The basis of the NOD is that the parcel is not permitted in the R80 district because it is not recognized by lot, by any one of the 4 code standards. None of them. So there's quite a lot of opposition there. Just to get back to the HD hearing or whatever you want to call that. A lot of false information was submitted to the HD, one being a letter from Pat Moore stating that the property was over 2 acres in size. That's dated March 13, 2002, in response to your notice dated March 8th, 2002 please be advised that the subject property is over 2 acres in size. And on the following page, the Chudiak parcel made the improved adjacent parcels larger and retained the subject 2 parcels which comply with your requirements, and, again, Chudiak's 2-acre parcel. That's incorrect information. I happened to be at that HD hearing, and there was also some additional improper information submitted. If you would look at findings and facts, which is No. 8, and it stipulates lots 19.10, 19.11, 19.18 and 19.19, those, one of those particular lots is mine. So if you were to look at one of those 4 lots that were presented to the HD, it made it look like the Wanat property, the Wells property, my particular property, and Mr. Pisacano's property, they were calling somewhat of a subdivision. Well yes, Wells, Wanat, and myself had houses on them. So if you were to think that this other parcel was the 41h parcel of the subdivision, of course you would say that particular parcel should be able to have a house on it. That was improper information. And just to go back a little bit further that the 1981 SC maps obviously you couldn't use those maps because they were addressing improper properties there. And nothing should be able to be grandfathered because of that. So actually I think the HD hearing should not be admissible at all even though they did have the foresight to put the onus back on the town for your final approval. Okay, I'm almost done. Basically, we have a very substandard lot here. It's.protected by owner infused covenants which are still intact. It's less than 2 acres in size, and if you subtract the ROW, it makes the building envelope even smaller than the total ownership package. We have everything on record from the PB, the BD, local attorneys and unanimous neighborhood coalition all agreeing and prohibiting this new building lot. So I'd really just like to thank you for your cooperation and conclude that a decision to deny these appeals is proper. Thank you. CHAIRWOMAN: Thank you. Is there... MS. MOORE: I do have to respond to one thing because the HD is so, I have to clarify for the board while it's fresh in my mind. The HD actually never had a record of the Simicich subdivision. So they actually incorporated the Hilliker lot, which is her property, she was there. Actually put it on the map themselves and incorporate it into the decision making. And gave her, essentially grandfathered her development plan. Somehow, well the subdivision was approved in '85. Their maps are from '81. And as you know, there was a period of time in the `80's that HD, while they required filing of minor subdivision maps, the PB did not direct people to do that. They weren't aware of that requirement. So there are many subdivisions in the Town of Southold that are Page 10 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing particularly in the `80's between I would say, well '81 is the magic date because that's when the HD looks at their map. But through like '86 or '87, I've had numerous applications where in '85 in particular the PB was not aware of the minor subdivisions having to get HD approval. So that's why the Hilliker property ended up being part of the discussion because they had no record of that lot either. And wondered where that had been created. That was Simicich's subdivision. Chudiak had nothing to do with it. But, Pisacano, in a sense, this proceeding that Mr. Pisacano went through actually benefited Mrs. Hilliker because the HD incorporated and recognized her property. She already had a house. I don't know how she got a building permit with, and the health, essentially the HD had no record of it. And that created a problem at the hearing. Aside from that, you have the decision and we do have the approval. CHAIRWOMAN: I just want to make, you have HD approval, but I do want to note that the HD also says it's a legal status of a lot within the town's jurisdiction. MS. MOORE: I understand. They didn't want to touch that issue. CHAIRWOMAN: They are not in power to. Is there anyone in the audience who would like to speak for or against the applicant? KEVIN MILOWSKI: I just have a few words. I'm Kevin Milowski. The one that we were mixed up on the lots here. MS. MOORE: Sorry about that. MR. MILOWSKI: That's okay. We are all local, but we're not all related. Back in '84 is when I bought my lot from Chudiak. And it was called-a set-off then. I guess there was 28 acres. I was the first one to get a piece of property. That's when the ROW was created which Mr. Pisacano was including in his building lot. For 18 years I've been maintaining that. That's how I get to my property,back and forth. When I bought my lot back then it was, times were tough too, but I had to buy, I approached the town. I had to buy 2 acres. I couldn't buy less. At that point in time Chudiak had 28 acres. And all I wanted was a % acre to build a house. But, you know, I had to buy a 2 acre lot to build. So I just don't think it's fair, in that case, that these smaller lots can be incorporated, which were just lot line changes to begin with anyway. CHAIRWOMAN: Mr. Milowski, while you are here, I did go through the record, the file from the prior zoning board of approval for your 280A access to your parcel. And when I went through the file, I came across 2 maps. One appears to be the SC tax map that would be around 1984. It's very interesting because that map does not show the Pisacano piece at all. In fact it doesn't show, it shows that piece as being part of what was lot 12, which was what Mr. Milowski's piece was originally set off from. It was all part of lot 12. Yes, I have it all here if you'd like a copy for your records. I'm going to- make copies for the file,but at any rate... MS. MOORE: What year was that? Page 11 of 26 7-10-03 Southold Town Board of Appeals Special Meeting.Public Hearing CHAIRWOMAN: This was 1984 when Mr. Milowski applied to the ZBA for 280A access. And this was the county tax map at the time. And I even have a copy of the letter from the PB indicating what lot it was. So it's very interesting that the county tax map, at that time, showed that the, what you are describing as the Pisacano piece as being part of lot 12. That's one thing. And the other thing is I did go back and carefully look at the file as to what exactly the board had approved when they approved Mr. Milowski's ROW. And as indicated on the file, the board approved access to his property and clearly put a restriction in the decision saying that any further subdivision on that road would require that the applicant come back to the board for 280A access. I had not seen the map or what the board had approved. So I thought well, part of what the board had approved might have bordered on the Pisacano piece. I does not, the board only approved 312'. It's written on the decision. It's shown on the map. In what appears to be 40' into the Milowski piece. So I'll submit all that for your review, but the bottom line is that the 280A access the board approved for the Milowski piece did not go up to, extend to Mr. Pisacano's piece. I just wanted to let you know that for the record. MS. MOORE: You understand that 280A is only required if it's a ROW. If you have fee title, it's not required. So as far as Pisacano's piece, Chudiak owned the road, and owned the piece. So there is no... CHAIRWOMAN: It's a ROW. MS. MOORE: No, I beg to differ. 280A town law is strictly for access over an unimproved ROW. Where you have fee title it takes you to the road, to a road, to a public road, it's not 280A. So a flagged lot, for example, does not get 280A because it has fee title to a public road. So when I discussed this and I presented it to the board the last time, and I explained that when Valerie made a point of saying, oh, you know you need a 280A for any further review. Well, there is no other, the Pisacano piece has fee title to Cox Neck. That is as of right, an access. There is no permission required from anyone. You get a building permit. If Milowski, on the other hand had a ROW over Chudiak, and therefore that's why 280A was required. Town law 280A says if you don't have access to a public road... CHAIRWOMAN: Access to a street... MS. MOORE: Title to a public road... CHAIRWOMAN: Well, actually, it says access to a public road. MEMBER OLIVA: Yes. CHAIRWOMAN: 280A does not talk about fee title. The word fee title doesn't appear in 280A access. And ... Page 12 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing i MS. MOORE: I respectfully.disagree that as a matter of law, 280A is applicable only for ROW's. That's my understanding of the case law, that's my understanding of the statute, and that's the way the BD has 100% applied this for the last, since 280A was in place. When you have a flagged lot, for example, the Pisacano piece is a flagged lot. A flag lot does not require 280A, as you know, you don't have flagged lots coming before you. Flagged lots have fee title. They have to have adequate access onto a public road. So the fact that you have a ROW is not the issue. The fact is whether or not you have access. CHAIRWOMAN: So you're saying that because he owns the road, that he does not need 280A access? MS. MOORE: Absolutely. CHAIRWOMAN: Well, I'll tell you, we'll have to check with legal council about that. MS. MOORE: Go right ahead. CHAIRWOMAN: No, we have had a number of them where the owners have owned the road and have applied to 280A, so they'll have to check it. MS. MOORE: It may be that you don't have some jobs that you otherwise have. CHAIRWOMAN: That would be wonderful. MS. MOORE: Look at lot lines, look at flagged lots. That's probably the clearest example of when you do or don't have 280A requirements. CHAIRWOMAN: I do want to note, though, that that was a condition in the decision. In the ZBA decision. That if there were any further development on that road, that it would require review by the ZBA. MS. MOORE: No. It said if there was any other, the 280, the ZBA would not have jurisdiction. You cannot impose jurisdiction. It's the condition of 280A is presumably if you have the jurisdiction to hear that case. You would not have jurisdiction to hear that case. First of all, it was Milowski and not as a covenant on the property. So if you want to impose a condition to have somebody come back and ask for permission from the board to do whatever, you better put it as a covenant. But nonetheless, there would have been no jurisdiction. When you get a building permit, you would get a building permit outright. You would not require 280A. So if that's where you are leaning... CHAIRWOMAN: As I said,we'll have to ask the town attorney. MS. MOORE: Please do because it's a legal issue... MR. MILOWSKI: That did go before the ZBA board for that... Page 13 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: Exactly, for Milowski, yes, for you. Exactly. It shows that the setoff in '84, that was one of the first ones. And apparently Chudiak owned what, 22 acres, the balance of the piece. MR. MILOWSKI: I think it was like 28 acres actually. CHAIRWOMAN: Okay,we'll get that issue cleared up. It's just that the old maps... MS. MOORE: I don't think that's actually, the tax map may have been, the tax map used may have been not in print. It just doesn't look right. Although in '84, that was probably one of the first. If you'd go back to my history, '84 was the first of the subdivisions, then you go Simicich is a separate piece. MR. MILOWSKI: I have a copy of my original survey, I don't know if you would like that, or, it has the ROW on it also. CHAIRWOMAN: Does it? MR. MILOWSKI: Yes. MS. MOORE: We don't dispute that Mr. Milowski has a ROW. Absolutely. He has a deeded ROW. CHAIRWOMAN: It's pretty much the same map as I have. Thank you. MS. MOORE: For the record, I think you and I talked. Someone had called me about the, it was Wells, okay. Mr. Wells professed that he was speaking, I guess, that you had talked and there was a concern about you losing your ROW or us blocking it... MR. MILOWSKI: No that can't be done. Because that's in my deed, that's always... MS. MOORE: I don't know anything about that, but anyway, there's no dispute that he has a ROW. CHAIRWOMAN: Is there anyone in the audience who would like to speak for or against the applicant? MR. MILOWSKI: I just, one other question, can I address Mr. Pisacano? Is the lot for sale? CHAIRWOMAN: You can ask me, and I'll ask him. MR. MILOWSKI: Because during this whole time, I guess even before Mr. Pisacano bought it, since I live right there, everybody that was coming in from real estates always seemed, I felt like I was the real estate. I had somebody come last Saturday saying they were looking for the lot that's for sale. And from what Mr. Pisacano paid for it, they said Page 14 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing the price has increased considerably with all permits in tact. I said, you know, I didn't think that was... MR. PISACANO: There's a lot of people I didn't contact yet to let them know it was off the market. MR. MILOWSKI: Oh okay, because they were there, and I was like, I just told them, I don't want to have to deal with this again. That's all. MIKE PISACANO: Just a couple of things, Mike Pisacano, I was wondering if any of it matters about the contours of the land or where the well was put, because I don't think that's relevant. Because whether or not I'd have to hook up to public water or not, doesn't matter where the well is on the property. I mean, I can drop a well anywhere. As far as Mr. Foster got any favors done, I wouldn't mind one myself, if the town does that. The contours, the HD is requiring me to get a topographical survey done, of the property as far as the drainage. So where the house and the septic system is located, it wouldn't effect, I mean they want to look at this before they will issue the permit itself. They have approved the board of review, but the permit itself, they want to look at the contours of the land to make sure it won't interrupt with any drainage. They did locate the house in an area and the septic system on high ground. I don't believe the grading of the land will change one bit as far as once the house is put there. And the water will go exactly where it's going right now. And it's not going to change. It's going to go into the ground. They did test wells, test samples, soil samples, and there is sufficient sand. So I don't think the drainage is going to be a problem. And that's about it. I mean I don't know if that's going to effect any decision on whether it's a lot or not. I don't think that really has to do with anything that's going on here as far as whether it's a lot or not. It doesn't matter where the well is located. It doesn't matter. If I have to get town water, I'd be willing to. I don't think it's an issue. CHAIRWOMAN: You bought it as a spec lot then? MR. PISACANO: Excuse me? CHAIRWOMAN: It's a spec lot for you? MR. PISACANO: I can't hear you. CHAIRWOMAN: It's a spec lot? MR. PISACANO: It wasn't. I didn't have intentions of that in the beginning,but I really wouldn't want to be there right now. I don't think I'd be welcome. I don't think they want anyone else really living there other their own little families. CHAIRWOMAN: Thank you very much. Does anyone have any other questions of Mr. Pisacano? Board members, do you have any other specific questions? The C&R's were never filed with the county of Suffolk, is that correct? Page 15 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: Which covenants are you talking about? CHAIRWOMAN: The no further... MS. MOORE: The merger covenants? CHAIRWOMAN: Yes. MS. MOORE: What they did is and we still have the same procedure with the PB today. You get the lot line change approval. Then you do a deed. You have to do 2 deeds, one deed from let's say here it was Chudiak to Wells. And then a 2nd deed, a confirmation deed. You get covenants, you record the covenants. In this instance actually each of the deeds had the covenant language as part of the deed. So it wasn't covenants and restrictions as we sometimes see independently of the deed. They were covenants imposed on the deed of conveyance. So Wells, when the deed came from Chudiak, conveyance deed to Wells, that deed has a language that the PB imposed. So they did comply with the condition of the lot line change. You know that a person can come in and ask for a variance from you. And they can choose not to build. Then nothing happens. If you don't build,you don't have any reason to have a variance. CHAIRWOMAN: I guess the difficult hurdle that I'm having and some of the other board members are having is that we go to the issue of if the lot was created by the PB. And in this case, no, was this particular lot created? MS. MOORE: But... CHAIRWOMAN: Excuse me. MS. MOORE: Go ahead. CHAIRWOMAN: Was this particular lot created? No it wasn't. Is this the original lot lines that were created and recognized by the PB? No, they are not. Now... MS. MOORE: Wait, wait,wait. Let me correct that because... CHAIRWOMAN: Excuse me, excuse me. I would like to finish. MS. MOORE: Alright. CHAIRWOMAN: I gave you tremendous courtesy when you made a presentation... MS. MOORE: You're right. I'm sorry. CHAIRWOMAN: I didn't interrupt you, please give me the same courtesy. They are not the same original lot lines. Whether Sally didn't sell to Bill, or Bill didn't go through Page 16 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing with John, or John didn't go through with Harry in the transactions that were supposed to take place. The question before us was this lot created by the PB? That is the question. MS. MOORE: Okay. May I? Sorry. CHAIRWOMAN: The lots that we are looking at, it was not. Now you could very justifiably argue that the remaining lots that the other people have were not created by the PB either,which means that they would have unimproved lots. And that may be the case. MS. MOORE: So everybody here, including the people sitting are going to have sterilized property? CHAIRWOMAN: The ones that did not go ahead and purchase that. Except that there is, the other thing that is interesting here is yes, I did go through the title search. I went through the title search when we first had the first round of hearings on this. And throughout the title search on this piece of property, it refers this lot is in part of XYZ lot. Part of this lot, part of that lot, part of this lot. The title search is not clean back to 1983 by any means. MS. MOORE: No, no, no. I have to start over. Out here we have farm pieces. You have an acreage,here you have Chudiak with 28 acres. The creation of lots,would I have loved Chudiak to have when Becker and the other couldn't sell, that they had done a deed and just conveyed to themselves the balance of the piece so I'd have a clean deed to point to. The BD asked me, do you have a deed that shows this dimension? Because if you do, you're grandfathered. That's it, we're done. No, because it was a farm parcel. This was a farmer. And the way that the lot was created was by subsequent subdivisions taking away from the whole. And you will look throughout, in particular, you have some of the large farm parcels. You won't find a deed for 28 acres, you won't find a deed for 10 acres. You might find a deed for one of the parcels of the subdivision because the farmer says, okay, we've subdivided or prior to, 1 guess whenever we recognized that the subdivision was done by deed. There was an old way, in the 70's that they did not come in for subdivision. That the farmers used to parcel out the deed... CHAIRWOMAN: I'm aware of all of that. MS. MOORE: But what you are saying is that this is not a lot created by the PB. Of course it is because you couldn't have gotten to this without approval of the lot line changes. Think of this as a 100 acre piece. And the balance of the pieces, you don't have, you kind of think outside the box. When it comes to title the reason they say, part of this,part of that, is because the title companies when they do a title search will look for the last deed of record. If that last deed of record has a schedule A that includes more than that piece that you're presenting to them, they'll say it's that parcel plus more because the last deed of record may be one from 1957 when the farmer owned 100 acres and that's the last deed of record. There's no obligation in law or in the town code to force an owner to do a deed. There's no legal requirement in real property law that forces a person to do a deed. So you can have parcels that have never, that you know, were Page 17 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing deeded originally from it's original acquisition in the 20's that are still showing as the original conveyance and it's outparcels. Essentially it's the balance of what was left behind as other pieces were conveyed out. That's what happened here. You had a piece that Mr. Milowski says, "geez, Mr. Chudiak used to own 28 acres out here". He then cut a piece away to Simicich. Simicich must have had at least 10-15 acres to do a 4 lot subdivision. That piece, that deed, went to Simicich, just like the deed that went to Milowski. That deed went to, you know a deed for the piece that Milowski owns went to Milowski. Chudiak never had other deeds to follow through. He owned the whole thing. He was still the owner of the property. Under real property law, the fact that you don't do conveyance deed doesn't mean that you've given up what you already own. You kind of, you know, let's look a big picture and as you take, you know you cut slithers away from that big picture. You still own the picture, you still have the underlying, overall dimensions of what you had before. CHAIRWOMAN: I understand that. MS. MOORE: It's frustrating to me because I wish I could solve it. CHAIRWOMAN: I don't understand that when the mergers did not take place, that Mr. Chudiak did not come back to the PB and say"look, the covenants and restrictions that go with this piece cannot hold because..." MS. MOORE: I'm sorry, there are no covenants and restrictions for the pieces that did not get conveyed. CHAIRWOMAN: Excuse me. MS. MOORE: It's just frustrating because you have to read the language. CHAIRWOMAN: Excuse me. The pieces that did not get conveyed when he saw that they were not getting conveyed, why didn't he come back to the town and say"look, they are not going to be conveyed. I'm going to be left with this piece, the Pisacano piece." Why didn't he seek to try to legalize it? MS. MOORE: No, let's not say legalize it because you're coming to a conclusion I think is not correct. You want to have it left essentially, you want to have it recognized post lot line changes. That's what you are saying. And just like the PB should have done what they wanted, which is impose a covenant. They should have done, instead of 4 separate lot line changes, had they done this as 1 lot line change approval that incorporated the 4 aspects of it, then yes, you would not have been able to do 1 without doing the 4. And the fact that they screwed up, they're blaming Chudiak and Pisacano. I'm sorry, you know, real property law and the code and zoning laws run against the drafter, run against the board that screws up. It's not to, the real property rights of the individual aren't eliminated because, you know, wishful thinking. Well geez, we wish we could have done, you know,just like you say, wouldn't it have been nice if Chudiak had come back and said to the PB, "well Becker can't buy because he's sick and Zabicky is no longer Page 18 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing there. I want to keep this to myself and this is the piece I'm going to have." That would have been wonderful, but that wasn't required. That would have made our jobs a lot easier. It would have made my job, my job would have been made easier if Chudiak had just done a deed way back at one point in time prior to '83. But I can't... CHAIRWOMAN: I'd like to kind of wrap this up. One thing, we keep talking about this lot that's 1.7. It's actually 37,500 sq. ft.? MS. MOORE: I'd have to look at the survey. MEMBER ORLANDO: That's correct. MS. MOORE: I use the assessors record, or the tax map. CHAIRWOMAN: The survey has the lot size right on it. Mr. Orlando? MEMBER ORLANDO: No other questions. CHAIRWOMAN: Ms. Oliva? MEMBER OLIVA: No questions. CHAIRWOMAN: Is there anyone in the audience who would like to speak for or against the applicant? MR. MILOWSKI: Just one thing, I think the Pisacano lot and all the lot line changes that were behind. When I bought my piece of property I was the first one, I believe that was a separate piece of property. It wasn't of the 28 acres. It was behind those houses, the lot line changes that they did. That was like a separate, because when I bought, you know, mine, Mr. Chudiak just said "take whatever 2 acres you want". But the ROW comes to where my property starts. So that was all, behind those houses, that was a separate piece in there. And I think all 4 lots together wasn't big enough to build a house on. That's why.I was offered a chunk of the whole thing where I am now, you know, to take 2 acres. Because that wasn't even a 2 acre piece, that was there. CHAIRWOMAN: Thank you very much Mr. Milowski. I'm going to make a motion to close the hearing and reserve decision. PLEASE SEE MINUTES FOR RESOLUTION Page 19 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing 8:25 p.m. Appl. No. 5323 - VIRGINIA and CHRISTOPHER COYNE (continued from 6/19/03) Request for Variances under Sections 100-31A and 100-33, based on the Building Department's February 11, 2003 Notice of Disapproval, for approval of: (a) living space in a non-habitable accessory building, with a proposed addition; (b) proposed additions/alterations to a non-habitable accessory building, and (c) "as built" accessory shed located in an area other than the code required rear yard. Location of Property: 8310 Soundview Avenue, Southold; CTM 59-7-29.6. CHAIRWOMAN: Is someone here who would like to speak on behalf of the applicant? MS. MOORE: Just me, and you'll get rid of me soon enough. What I did is I tried to give you guys a little more understanding of this, at least my position with regards to this cottage. What I did is, the history is that there was a minor subdivision, the cottage, the structure was on the property where it presently exists. And it shows on the subdivision maps. So there is a pre-existing structure there. We think it was a hangout, but-it could have been a residence at that point. We just don't know because it's too far back. There's nobody alive to tell us. Then in '76 the property was subdivided. At that time zoning only required 1 acre per lot. This was a 3.68 acre property. So, what I believe occurred is that when my clients, excuse me, the predecessor, Schur, built a house in 1978 on this property, the cottage was allowed to remain there as a dwelling because the acreage of the property has so far exceeded the zoning requirements. The code speaks with respect to 1 dwelling for 40K sq. ft. and here we had 3.6 acres. I submitted to the board the CO for the house. And the Building Dept. (BD) went back in 2002, Mr. Schur, I guess getting ready to sell the house, got a permit for an "as-built" deck addition to his single family dwelling. At that time, the cottage was there. The BD went onto the property once, certainly when the building permit and CO was issued in '78, and again in 2002, never made an issue of the cottage. The cottage was used by the prior family, Schur, we know this because; one, I have an affidavit from, I found through several phone calls, chain of phone calls, I found out that Larry Liso built this house. And Larry remembers the cottage, and remembers that the Schur family was, used the cottage, was living there while the house was under construction. And we know that the Schur son was living in the cottage. I believe he was working at TJ Transmission. We had to wait until he found a place to live before we could close: So the cottage was occupied all throughout this time. CHAIRWOMAN: When did Mr. Schur live there? MS. MOORE: He built the house in '78. He was the original. He bought from Bayley, it was the Bayley subdivision in '76. And Schur was the first owner of this parcel. CHAIRWOMAN: Of the house. MS. MOORE: Of the one who built the house, yes. CHAIRWOMAN: So he occupied the main dwelling, did he also live in the cottage? Page 20 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: His son lived in the cottage. His son was old enough, in his 20's. The cottage was used. It was used for family. And it was used for guests. And I'm very disappointed that the board didn't get a chance to go inside. I think it's imperative that you go inside the cottage to look at it. I mean, because from the outside it just looks an old shed. It hasn't changed very much. And inside when you go in, you will see it's pretty much in it's original condition, decor is from the 70's, and everything has pretty much stayed the same. The reason Mrs. Coyne had wanted to get, do an addition, renovation of it was because the inside hadn't been changed, certainly in 20 years, so, 30 years. We think you should see the inside before you make a decision because I think when you go in, it will be so apparent. That this cottage was obviously used, and it's a very cute, little, I think it was a bedroom, a bathroom, full bathroom, shower, and living, dining area. All one side of the house is living, dining, with a little kitchenette area, little kitchen, stove, and refrigerator. It's very cute, very clean and maintained. But maintained by way of the old building materials with just paint. But still well maintained. CHAIRWOMAN: Since 1978 then, they've used it kind of as a guest cottage? MS. MOORE: Yes, it's been a guest cottage. Which is what we were willing to have a condition placed on the approval that it be as a guest cottage ancillary to the residence because they weren't necessarily interested in renting it. They don't want anybody coming to rent the cottage. They have a young family. They don't want strangers there. And for the most part, people that buy a significant home aren't going to be renting, this is not a waterfront cottage where they could rent it for a significant amount of money. This is a nice, accessory dwelling for the guests and the family and teenage, young, adult child, or in the Coyne's case, it was her mother, that they want to live on the same property,but not necessarily on top of each other. CHAIRWOMAN: The Coyne's, the clients that you are representing, have not owned the house a year, is that correct? MS. MOORE: Right, we bought it in 2003. CHAIRWOMAN: And when you bought the house, you bought it with the understanding that it did not have a CO. Your client was aware that the cottage did not have a CO as a dwelling,but rather as an accessory building. MS. MOORE: Actually turned out we had the application. We had made the application for a pre-CO, but couldn't get one in time. The Schur's, t& sellers were not willing to give us the time for the pre-CO. It was obvious, you"know, apparent, obvious to us as it would be obvious as you go look at it that it's existing and pre-dates, we didn't think it was a significant risk. Then when we finally got the BD to do the inspection, Boufis says, well I'm not going to make a decision on the use. I'll give you non-occupancy structure CO. No, that's not what we wanted. So we appealed, we came right to you for an appeal. That's all Boufis was willing to make a decision on. No matter, I gave him Page 21 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing the affidavit. I gave him the surveys. And I would think that somebody whose lived out here. Certainly a couple of BD people have lived out here long enough, you know... CHAIRWOMAN: What did the contract of sale say when Schur sold it to Coyne? MS. MOORE: We didn't have... CHAIRWOMAN: There was no contract of sale? MS. MOORE: No, no, no,we didn't have a contingency to allow us to get a pre-CO? CHAIRWOMAN: What did the contract of sale state? Does it state there is 1 dwelling? Does the contract of sale say there's 2 dwellings? MS. MOORE: Doesn't say how many dwellings. CHAIRWOMAN: It doesn't refer to any dwellings on the property whatsoever? MS. MOORE: It's a standard language of a contract that says selling... MEMBER ORLANDO: Does it acknowledge that it exists? MS. MOORE: Obviously they said it was there, and they didn't want to be bothered. MEMBER OLIVA: It's not mentioned in the contract of sale? MS. MOORE: Pardon me? MEMBER OLIVA: It's not mentioned in the contract of sale? MS. MOORE: Not mentioned in the contract of sale as a cottage. He would not make any representations. Let's put it that way. MEMBER ORLANDO: Then it doesn't exist. They don't acknowledge it as anything? MS. MOORE: You have a seller that says take it or leave it, or get out of my face type of thing. And my clients really wanted the house, he said, I'm going to give you 30 days and we're going to close. And I'm going to give you a CO for the main dwelling, but I'm not going to be obligated to give you a CO for any additional structure. So therefore, the shed, we were not able to get a CO for the shed because that required a variance from the board. We couldn't get a CO, pre-CO, even though we tried to get a pre-CO before closing for the cottage. We couldn't do that either. CHAIRWOMAN: So she bought it knowing, right away, that she had no guarantees that this cottage was anything other than an accessory shed, cottage. Page 22 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MEMBER ORLANDO: Now she's moving. MS. MOORE: Now she's got the house on the market because her husband got relocated. But now she has somebody who's going to come and maybe not be as willing to take the house without, I mean the cottage is there. It's been used as a dwelling. So we want to legalize it. MEMBER ORLANDO: (inaudible) MS. MOORE: Well, if you say no to the addition, the more important thing is to get an acknowledgement that it exists and a CO for the structure as a habitable dwelling. CHAIRWOMAN: That's the issue. And as far as a habitable, it doesn't even meet the definition of a dwelling unit. MS. MOORE: I'm sorry. I'm getting so frustrated because pre-existing structures are pre-existing structures. This structure, you've said before is a pre-existing structure. It became non-conforming only when, in '83, there was a zoning change that made it nonconforming. The use is, have you forgotten all our zoning principles? Pre-existing, our code is, right from the beginning, says structures that are existing prior to the date of the ordinance are pre-existing non-conforming. There is no obligation to have a certificate for, it's existing. CHAIRWOMAN: Yes. What existed though? You're maintaining that a dwelling existed. MS. MOORE: But it was, it was occupied as a dwelling. A dwelling is a place where people live and sleep. CHAIRWOMAN: It was also a bar and a kind of place where people gathered. MS. MOORE: When we started, how old it is, alright, in the 50's this building was built. In the 50's, early 50's, maybe in the 40's, this building was built. It was used as a hang- out, as a social club for the farmers that owned all the acreage. There were no houses. Sound Shore Road, and I spoke to Terry Latham today because I saw Latham, did, he mined, his father actually mined south of this property. So I was trying to gather information from old timers to see if anybody remembered the existence of this cottage. And he tells me there was nothing up there. In fact, there was, his family mined and did sand mining off of that area until the town dump was built and they put him out of business because the dump needed to open up a pit and all the sand was being sold for 5 cents a cubic yard instead of what the mining operations, Latham Sand, you know from Orient. So eventually the sand pits were eliminated. CHAIRWOMAN: Okay. Page 23 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: Okay. So we've got a history here. The fact that, so anyway, this is a residential use. The dwelling itself is a residential use. It's been that way, and certainly that way throughout the time that Schur owned it. And Schur, the zoning changes that would have made it non-conforming as a second dwelling on a property only took effect when 2-acre zoning came into effect. Because then you needed 4 acres for 2 dwellings, right? And we had 3.6 acres here. But the fact is that it was pre-existing. So while you're used to thinking of pre-existing as pre-1957, this pre-existing occurs at any time that there is a change in the zoning ordinance. We're about to do, if we do the 5 acre zoning, are you telling me that every 2 acre lot that has a house on it, suddenly gets eliminated? Of course not, it becomes pre-existing, non-conforming. If you have a lot, you can still build on it. It's pre-existing non-conforming. Here you have a cottage that was allowed and was occupied. It became pre-existing, non-conforming in '83. Not before, and it's been that way ever since. I would ask that before you close this hearing, go out and take a look inside. Mrs. Coyne was very upset. She's not here today because she was so upset at the last hearing that you are making decisions over the elimination of something that's so important, a cottage. I mean, we have very valuable properties out here that have cottages on them. There are going to be major lawsuits if the board starts eliminating them, and not recognizing them. They are existing, they are pre-existing. And the fact that there are changes made to the property should not effect a pre-existing cottage. A pre-existing use is a valid, existing use unless intentionally abandoned for a period of time. That was not the case here. We had a continuous use and the family still continues to use it for her guests. And will continue to use it. And the fact is if it doesn't get legalized, you're just going to create situations where structures exist out there without the legal blessing of the town. And they are going to continue to be used. That's not really the purposes here. The ZBA sits to create, to after explanation, to give relief to people and to give permits when the BD, in their world of black and white, can't do it. The BD couldn't see past that. They didn't have to look back at '57. You only had to look to the point where it became non-conforming. And that was in '83. And you have both papers now. MEMBER ORLANDO: I thought you were going to be nicer,this time, you said. MS. MOORE: I'm frustrated because you guys are very intelligent. You know, I mean if you were lawyers sitting up there, you would be cringing. MEMBER OLIVA: I don't understand how the Coyne's bought the property from the Shore's... MS. MOORE: Schur's. MEMBER OLIVA: Schur's, not knowing they had 2 CO's on the property. MS. MOORE: It happens all the time quite frankly. Page 24 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MEMBER OLIVA: It wasn't done through a bank. I take it. It was a cash thing? Because a bank, if they have to go through a mortgage, usually insists that you have the proper CO's. MS. MOORE: The bank didn't require, the house value, some banks are now giving away money, they don't make a big deal out of, if they see there's a CO on the house, because there was certainly a CO on the main dwelling and that was one of the biggest and nicest houses built up on that road at the time. I mean, when I spoke to Larry Liso, Larry Lisa said yes, that was one of the big houses at the time. That was equivalent of the old manor houses. But you have to understand in a sellers market, sellers can tell you to scratch, take it or leave it. And you, as a buyer, assess the situation and go well, you know, you can't, it's here, I see it. Any reasonable person would see it too. MEMBER OLIVA: But then you're stuck with the problem. MS. MOORE: But it's the same with the shed sitting in the front yard. Where else is it going to go? MEMBER ORLANDO: Well Pat, you answered my question, but I have to ask it anyway for the record. Say we denied this, what would they do with that dwelling? MS. MOORE: They'd keep using it, come on. If it's not then it's going to be someone down the line. MEMBER ORLANDO: They are using it as we speak. The bed was even made when I looked in the window. MS. MOORE: You guys really should come and look, she really wants you to come and look inside because you must see the inside. When you look inside you'll go, oh, this is a no brainer. CHAIRWOMAN: We have looked through the property. We looked through the windows. Ruth, Vinny, Jerry and I have looked, it's up to you. Do you want to see inside? MEMBER ORLANDO: I looked around. I looked in the windows. I can see .what I need to see. MS. MOORE: You can see it's a 1970's d6cor and nothing much has changed. CHAIRWOMAN: Do you want to leave this hearing open, or close it? MEMBER ORLANDO: Well, there's only 3 of us, we should leave it open at least so George and Jerry. Page 25 of 26 7-10-03 Southold Town Board of Appeals Special Meeting Public Hearing MS. MOORE: If they want to come see the inside of it, by all means. If you're going to deny it, I don't understand. But I think it really requires, you go inside, it's so clear that it's a full... MEMBER ORLANDO: I think you should leave it open because there's 2 people missing. CHAIRWOMAN: Open until when? The next meeting? MS. MOORE: In the meantime, see if they want to do an inspection, go inside. It's very insulting to a property owner, something so important, and the last meeting she was here, the reaction and the comments that were made were like, you know, what do you mean? There's no cottage there. Come and look inside. There's no doubt that this is a full, little, dwelling. It's there, it's existing, it's been used. Give us the benefit of looking inside it. CHAIRWOMAN: Why don't we leave it open and talk about it with George and Jerry. And see if they want to do an inspection. It will have to be the August meeting, August 21. MS. MOORE: If you know you're coming let us know and we'll leave it unlocked. MEMBER ORLANDO: I don't think any neighbors came. MS. MOORE: There were no neighbors last time. There's no opposition here. It's a 3.6 acre property. You know, nobody cares. MEMBER ORLANDO: We can close it and discuss it on the 24th when everybody's here. MEMBER OLIVA: Close it. MEMBER ORLANDO: We can close it, and then speak to Jerry. George will be here in 2 weeks. CHAIRWOMAN: If they want to, they will. MS. MOORE: If you're convinced, you don't need to look at it. CHAIRWOMAN: I'm saying they are going to make a decision. I'll make a motion closing the hearing. PLEASE SEE MINUTES FOR RESOLUTION 8:50 pm Public Hearing Concluded Page 26 of 26