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HomeMy WebLinkAboutZBA-08/23/1984 t. FFo��oG . o y Southold Town Board of Appeals � • MAIN ROAD - STATE ROAD 25 SOUTHOLD, L.I.. N.Y. 11971 oy�ol ��0 TELEPHONE (516) 765-1809 APPEALS BOARD MEMBERS GERARD P. GOEHRINGER, CHAIRMAN CHARLES GRIGONIS,JR. SERGE DOYEN, JR. ` ROBERT J. DOUGLASS JOSEPH H. SAWICKI M I N U T E S AUGUST 23 , 1984 REGULAR MEETING A Regular Meeting of the Southold :Town Board of Appeals was held on Thursday , August 23 , 1984 at 7 : 30 o ' clock p .m. at the Southold Town Hall , Main Road , Southold , New York. Present were : Gerard P. Goehringer , Chairman ; Serge Doyen , Jr . ; Charles Grigonis , Jr . ; Robert J . Douglass and Joseph H. Sawicki . Also present were approximately 35 persons in . the audience . The Chairman opened the meeting at approximately 7 : 37 p .m. and proceeded with the first recessed hearing , as follows : RECESSED PUBLIC HEARING: Appeal No . 3259 : Upon .application of NICHOLAS ALIANO , 3800 Duck Pond Road , Cutchogue , NY for a Special Exception to the Zoning Ordinance , Article VI , Section 100-60 (B)[1 ] (b ) , Article V, Section 100-50 (B) [4] for permission to establish and build four two-story motel buildings containing 10 motel units for transient use , and an office building of 2 , 500 sq . ft . in area on this 3 . 721 -acre parcel located at the South Side of Main Road , Greenport, NY . Zoning District : B-Light Business.. County Tax Map Parcel No . 1000-46-01 -002 . 1 . The, Chairman reconvened the public hearing at 7 :41 p .m . MR . CHAIRMAN : This hearing was recessed from the last meeting and we ' ll ask Mr . Aliano if he has additional information he would like to tell us . MR. ALIANO: None , thank you . MR. CHAIRMAN : I ' ll ask anybody in the audience if they ' d like to speak in behalf of this application . Anybody like to speak against this application? (No one ) The Planning Board Chairman and myself did meet concerning your application , Mr . Aliano , and ~Southold Town Board of Appeals -2- August 23 , 1984 Regular Meeting (Appe.al -No . '3259. - .NICHO.LAS ALIANO, continued : ) MR. CHAIRMAN (continued ) : the situation is like this . If we were to close the hearing , as we mentioned to you at the last meeting , any changes in the application would require a new application on your part . It has been the sugges- tion of counsel and the suggestion of the board that we continue your application in open.-recess until such time that you supply us with contracts from the Village of Greenport concerning sewage and water; and at that particular time , once you supply us with that , we ' ll , at the next Regular Meeting , we ' ll close the hearing and make a decision , in your behalf. I hope it ' s favorable . Whenever you supply us with that information . MR. ALIANO: Before I get a signed contract , I ' ve got to get them "X" amount of dollars , thousands . Twenty thousand dollars it ' s costing us . And-- MR. CHAIRMAN : That ' s up front? MR . ALIANO : At the signing of the contract . And the Planning-- from what I understand , the Planning Board before they want to make any changes or whatever , they. want to know from you whether it ' s feasible or whether you agree to this type fo a unit going in there before they go any further even with their-- I ' m just getting bounced back and forth here . MR . CHAIRMAN : No , really you ' re not. As soon as you give us that , can ' t you make those contracts predicated on the zoning? MR. ALIANO : Let me ask you this . Can you just say subject to getting--you ' ve got the letters there that they-.committed themselves to the water and sewage ; isn ' t it possible for you to say , it ' ll be "all right with us subject to a contract , " or something? MR. CHAIRMAN : I could do that before the letter came out in the newspaper two weeks ago . It was said that they are talking about a morator. i,um: on this now. So that ' s all I can tell you at this point . This is what our counsel has suggested. MR. ALIANO: A moratorium. Yeah . But in speaking to Mr. Monsell , he said you just got in under the wire , and that would cover us , we ' re supposedly the last one to get in under the wire . Not subject to this moratorium. Don ' t take my word for it MR. CHAIRMAN: No , no-- I can appreciate that . MR. ALIANO: I ' ve gone through two years of this and I don ' t think it ' s right that I got to keep:.getti:ng bounced. I ' ll never get this thing underground . From the Planning Board ' s point of view, all they . wanted is , is this feasible--do you agree to a motel , if you don ' t think a motel is feasible with 40 units there , say it or not say it. Southold Town Board of Appeals -3- August 23 , . 1984 Regular Meeting (Appeal No . 3259 - NICHOLAS ALIANO, continued : ) MR . ALIANO (continued) : that ' s all . You know. That ' s all they want to know. They want to go ahead . . There ' s a lot more work to be done . MR. CHAIRMAN : You have to understand it. I can ' t. speak for this board . I-- MR. ALIANO : Ok . I ' m talking to the board when I ' m talking . MR. CHAIRMAN : As an individual , ok , certainly in your hearing , the last hearing , no one came down in opposition to your application , ok. And as you know, we have filled this room many , many times with motel and multiple dwelling applications ,change of uses of zoning , etc . people are looking for in this town . So I would say that ' ... appears favorable , and I , you know, as an individual not specifically the chairman , I personally feel that , it ' s the area , based upon the Driftwood Cove area , and so on and so forth . That' s all I can say . MR. ALIANO : If the board don ' t want to work with me on this thing , and work with me to accomplish this , then I ' ll just throw my hands out. MR. CHAIRMAN: No , I wouldn ' t throw up your hands . You can ' t sign these contracts predicated to the zoning for the proper applica- tion? MR. ALIANO: Well , without paying any money , I don ' t know. How are they going to take it. The contract is not a contract unless money changes hands . And I don ' t see , and I ' m talking to the board now, I can ' t see why the board can ' t say , " if he doesn ' t get water and sewage , the contract is no deal . " I don ' t see what the harm is . And I-- MR. CHAIRMAN :. Basically , our decisions go with the land. So it can ' t be an either-or decision . In other words , it can ' t be 18 units without or 40 units with . Ok? It' s got to be a mandated decision by the courts ; it ' s upheld by the courts , ok , or overturned by the courts , and it has .got to be one specific thing . It ' s can ' t be an either-or situation . MR. ALIANO: If I can ' t put. 40 units , I ' m not- going to build there . MR . CHAIRMAN : I understand that. But everyday people sign con- tracts subject to , so I would assume you could probably sign the contract subject to the proper -- �South-old Town Board c Rppeals -4- August 23 , 84 Regular Meeting (Appeal No . 3259 - NICHOLAS ALIANO , continued : ) MR. ALIANO : Well anything can be done . MR. CHAIRMAN : It was also brought to my mind , the Planning Board is going to re-review this at their September meeting. As I said , get us the contract. As soon as we see them , we ' ll put them on the agenda for the next hearings and we ' ll close the hearing and make a decision thereafter . MR . ALIANO : You can ' t make a decision without that? MR. CHAIRMAN : I can ' t make a decision because . it ' s going to be an either-or decision , and I can ' t make an either-or decision . It ' s got to be a definite decision . MR. ALIANO : Ok . MR. CHAIRMAN : All right? I ' m sorry . Qny questions from board members? MEMBER SAWICKI : None . MR . CHAIRMAN : Hearing no further questions , I ' ll make a motion .leaving this hearing in "open recess" until we receive the signed contracts . MEMBER SAWICKI . Second . On motion by Mr . Goehringer , seconded by Mr . Sawicki , it was RESOLVED, to leave the hearing in "open recess " pending receipt of the signed contract between the applicant and the Village of Greenport concerning the sewage and water system..hook-ups . Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was unanimously adopted by all the members . APPROVAL OF MINUTES: On motion by Member Douglass , seconded by . Member Grigonis , it was RESOLVED, to approve the Minutes of the June 28 , '1984 Special Meeting of this board. Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was unanimously adopted. by all the members . , ..Southold Town Board or Appeals -5 August 23 , 1984 Regular Meeting RECESSED PUBLIC HEARING : Appeal No . 3234 : Upon application of ARTHUR R . TRUCKENBRODT, ET AL . , Private Road , Orient , NY for a reversal of the interpretation of the building inspec- tor concerning a Certificate of Occupancy No . Z11736 issued June 21 , 1983 to E. Loucopoulos and H.. Damia.nos for an one-family dwelling and four accessory cottage structures at Private Road No . 7 , (a/k/a Diedericks Road ) , Orient , NY; County Tax Map Parcel No . 1000-18-03-005 [Current Owners : D. I . Abbott and J .T. Swanson] . The Chairman reconvened this hearing at approximately 7 : 53 p .m . For the record it is noted that this hearing was recessed from the July 26 , 1984 hearing . Re-advertisement was not published since the hearing was recessed with a date from the last hearing . MR. CHAIRMAN : Mr . Pachman , without the use of your reporter , do you remember the legal opinion that I was referring to when I had recessed the hearing? HOWARD PACHMAN , ESQ . : I assume at that time , Mr. Chairman , what I recollect it was , that I was trying to submit some proof with refer- ence to the cost of the improvements on the cottages , pursuant to 100-118 , Subdivision E , which states that a nonconforming building may not be reconstructed or structurally altered during its life to an extent exceeding in aggregate cost of 50% of the fair value of the building unless the use of such building is changed to a conforming use . And at that point , without putting words in Mr. Esseks ' mouth , he made some objection that these were always used as residences , so therefore they were conforming . I was somewhat surprised with the position that he took , but at least we had some idea what he was talking about at that point--at least. I was , and I was ready to meet that issue tonight , 'and you called me and you said you didn ' t want to hear any legal arguments and that wanted to conclude the hearing . And I ' m ready to conclude the hearing . But . I 'm ready for the legal argument. If you want me to , I ' ll. be pleased to set forth why I believe our proof was more than adequate and that Mr. Esseks ' position is not tenable under the ordinance. And I see that we have the presence of Town Counsel here , and I hope the board will have hi,s guidance although, we,..may not agree. MR. ESSEKS: Mr. Chairman , before he gives his rebuttal , I think you ought to hear my application . MR. CHAIRMAN : Certainly . _ MR . ESSEKS : Simply stated , dollars and cents proof comes under , as Mr. Pachman says , Section 1.00-1-18 ( E) ; however , the i -Southold Town Board oT Appeals -6- August 23, ."J84 Regular Meeting (Appeal No . 3234 - 'TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR . ESSEKS (continued) : threshold question before you get to 118,(E) is a finding by this board that these buildings , that are the subject of this applica- tion , the four cottages , are in fact nonconforming uses because 100-118 ( E) says in its preamble , . . unless otherwise authorized as a Special Exception by the Board of Appeals as hereinafter provided , the following provisions shall apply to nonconforming uses . . . ; " so (A ) through (E) only apply to nonconforming uses , not nonconforming buildings . And as I pointed out in the memor- andum of law submitted to you , a very similar case , in the Supreme Court of Nassau County , as referred to i.n a decision of the Appellate Division two years later , there ' s a distinction between a building that is situate on a lot and the building is nonconforming with regards to either coverage , or setback , or the size of the lot , but the use is still a conforming use . As I stated last time , if there were a gas station on a residentially zoned property , that would be a nonconforming use . because you can ' t have a gasoline station in a residential district. Here we have residential units , these four cottages in a residentially zoned parcel , so that it'.s =hots-the use that ' s nonconforming , it is in fact the--if anything . and I ' ll dispute that--the setbacks and sideyards , and therefore until the board makes a finding that the . use i.s.:nonconforming , I don ' t believe that he ' s allowed to offer any proof pursuant to 100-118 . MR. PACHMAN : Mr. Chairman? If I may meet that. Since I had assumed that the Planning Board would at least take judicial notice of its own ordinance , and I was relying on that and I didn ' t want to be preaching to the choir , I mean because I also made the assumption that the Board .of Appeals--was familiar with the ordinance in total but maybe I should give the board some guid= ance as to some highlights of the ordinance which they may have overlooked or misunderstood . I had the Town Clerk certify Section 100-13 which is a residence "A" District, which this property is in and I don ' t think there ' s any contest that this property is a residence "A" District. And when the ordinance was formed-adopted originally in May of 1966 , and this property was put in the resi - dence "A" District , it had restricted the district to one-family dwellings . One— family dwellings . And it specifically excluded tourist cottages , hotels and motels , et cetera . And carried through with all the amendments to thi.s , very :date , including Local Law 11 , which was a Local Law 9., which was adopted in 1983-- that has not been changed--upzoned in the sense of acreage and various square footage and things like that , but as far as the uses and the setback and the various things like that , that has not changed substantially since the original adoption of the ordinance . So for the record , I would like to submit the certi - fied copy of the initial ordinance , its recodifi.cation and its several amendments to date . (Mr. Pachman submitted for the record the copies of the documents certified by the Town Clerk to be true transcripts of originals of Section 100-30 , including bulk and parking schedules , from Southold Town Zoning Code , Chapter 100 , April 9 , 1957 to August 14 , 1984 . ) Southold Town Board of Appeals -7- August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT "AND SWANSON , continued : ) (The Chairman marked this Exhibit "HP 8/23 '.' ) MR. ESSEKS: No objection . MR . CHAIRMAN : What else would you like to say , Mr . Pachman? MR. PACHMAN : When you had indicated to me yesterday when you called me and said you wanted to be sure that everything was done tonight , and maybe - I : got the misimpression that you didn ' t want to get involved in the legal argument , although I was ready to prepare a brief and I have. it drafted in my hand , which was done ; I did , not put it in final form to submit to the board , so I ' ll take the libery o.f giving a summary and 1`11 be pleased to serve all members of the board , Mr. Esseks , and Town Counsel , so we will have the essence of those arguments. MR . .CHAIRM.AN : When. we close the hearing, I ' ll make. it subject to receiving' it.' . MR. PAC'HM.AN : Tha.nk' you very much . At first the two. cardinal pr.incipl.es or cannons. in your own. ordi.nance ,. _100�.1,0'(E) & ( F) says it .shall be the maximum protection of re.siden-ti.al areas and the gradual elimination of .nonconforming_.,:uses � ' and I eluded to ' th.at in 'my original brief which you have and I 'm. not going to go. back to tha.t... But_ with reference to. what is anonconforming .use . Section. 'A which this property is in ,. 'before we. get .to that--. when you-"establish the residen_ti.al .di-stricts, the,_othertype -of district , 'you say in 100-23 ' that "_. . . no building shall be,._erected , moved , altered ; rebuilt or enlarged , nor shall any land or building be used , designed or arranged to be used for any .purpose or In any manner except in conformity with all the regulations and require- ments and restrictions specified i_n this chapter for the district in which such building or land is located. . . " So no change in the building at all , unless it conforms with' the current ordinance. "No yard, or open space required in connection with any building or use shall be considered as providing a required open space forany other building on the same or any other lot. . . . " And , " . . . no lot shall be formed from part of a lot already occupied by a building unless . -: . " . it;.has a sideyard restriction . So at least that ' s the sideyard restriction , I think Mr . Esseks even concedes as having more than one building on one lot would be a .violation unless it comports with the present square footage setback requirements . So as to those parts of the building , they are nonconforming . So on that alone , any change in those buildings based upon their noncon- forming sideyards and setbacks makes them nonconforming buildings . But that doesn ' t matter., because you define in your ordinance again that a nonconforming use _ is. . . 11ij :any use , whether of building or tract of land , or both . . . . " So the use of a building or the land upon which the building sits on makes it a nonconforming use , and I won ' t go through . reading the whole definition of a nonconforming use because it appears in the ordinance in your definitions . But let ' s get back to what is permi,tted .in Residence "A . " -Southold Town Board or Appeals -8- August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR . PACHMAN (continued) : Residence "A" permits one dwelling , under 100-30 (A) , Permitted Uses : " . . . One family detached dwellings , not to exceed one (1 ) dwelling on each lot . . . . " So immediately, when you passed this ordinance , when there became more than one dwelling on that building , the whole lot became nonconforming . Now , your own ordinance defines what a dwelling is . And a dwelling is defined by the ordinance as--and this is important. It says . a - "one family dwelling is a detached building containing one dwelling unit . . . . " And then it says , define a . dwelling unit , " . . . a building or entirely self-contained portion thereof containing complete housekeeping facilities for only one ( 1 ) family . . . . " Not four families . Not five families . One family., Including any domestic servants . None of the people who were living in these dwellings were domestic servants even .if you listened to Mr. Damianos ' testimony . For only one family , including domestic servants , which I read , " . .'. . and having no enclosed space (other than vestibules . . . ) ; or;..cooking or sanitary facilities in common-. with any other dwelling;;unit :. . . . " But then it makes this exception : " . . .A house trailer , a boarding- or rooming- house , convalescent home , fraternity .or sorority house , hotel , motel , iinn , lodging or nursing or other similar home or other similar structure shall not be deemed . . . a dwelling . . . . " So none of these buildings under the definitions of the ordinance can be deemed to be dwellings . . So they violate the ordinance- and they are nonconforming . And by just looking at them, and you ' ve visited the site as I understand it and you may visit it again , you see that violation of the ordinance . But let ' s go and see how you define a tourist camp or a tourist cottage , which--what these are by self-definition : TOURIST CAMP -- Any lot , piece or parcel of ground where two or more tents . . . and we don ' t have tents , . . . tent houses , . camp. :pottages , . house cars . . . we don ' t have , . . . or house trailers used as living or sleeping quarters are or may be located , said camp may be operated for or without compensation . . . . Well , these buildings fall under that definition . And if you want to know what a tourist cottage is , you defined it in the ordinance again , and it says : . . . _ . . A detached building having less than three hundred. fifty (350 ) square feet . . . , These buildings are clearly under 350 square feet . . Southold Town Board of Appeals -9- August 23 ,- 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON, continued : ) MR. PA.CHMAN (continued ) : . . . . of cross-sectional area , designed for or occupied as living and sleeping quarters for seasonal . occupancy. . . . Well , by this very definition , these are tourist cottages . They ' re not permitted in Residence "A" when the ordinance was originally adopted. :.- To: this :V.ery day , they ' re nonconforming , and the only reason they were allowed to exist and can exist is if they continued to be maintained so that they would be exempted as a matter .of law under the statutes . And under the ordinance . So I don ' t know what more I can give you by way of proof in your own ordinance . Now, if Mr. Esseks wants to respond to that , I ' ll catch my breath and I ' ll continue to rebut , subject to the Chairman ' s ruling. MR. ESSEKS: I could react to the first things first--the last thing first. I don ' t know why Howard Pachman testified that these buildings are less than 350, square feet. Because they ' re not. He hasn ' t offered any proof on the subject. He hasn ' t suggested any proof on the subject . And if the board wants proof on the subject , we ' ll have proof. Come someone else , other than myself, that two of them are over 528 feet and the other one i.s over 624 , none of them are 350 feet , and by your own definition , as Mr . Pachman read , a tourist cottage is a detached building , has less than 350 square feet , and unless proof is put into this record that they are less than 350 square feet , we ought to stop talking about tourist cottages , because this town .has chosen to define what a tourist cottage is , and it ' s less than 350 square feet . Now I have trouble understanding why he read dwelling , one-family dwelling , one-family says in your ordinance : A detached building containing one dwelling unit only . . . . On this parcel of 12+ acres , there are five residential structures . Some are larger than others . ,They-:ar.e;::a1l. over 350 square feet. And each one is designed--no testimony to the contrary that they ' re one-family dwelling unit only . Now, if you look under the definition of nonconforming uses , noncon- forming uses , interestingly enough-- I ' m trying not to be sarcastic-- is interestingly defined as involving the use regulations of districts , not the setbacks or the coverage , but the use regulations of the district. Now he makes point of your Article II , Section 100-30 , then you get into a definition of lot; and when you get into a definition of lot , there ' s no sense in my reading it , but your lot definition covers buildings or groups of buildings on one parcel , and it ' s a question of interpretation . But I believe there hasn ' t been the suggestion of proof that these cottages have been used for any purpose other than one-family residence , and by defini - tion , unless they-are under 350 feet , they ' re not a cottage colony , because again tourist camp , .then phrase down to cottages , and cottages is limited to 350 square feet . So I pressed my point that t.her'ecannot . Southold Town Board of Appeals -10 August 23 , I984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR. ESSEKS (continued ) : be any offer of testimony as to dollars until there ' s a finding by the board that there is a nonconforming use and therefore I ' m asking you to make that ruling before you get to the dollars . MR . CHAIRMAN : I must apologize to the people in the rear of the room there . Are you having trouble hearing Mr . Esseks? You are? MR. ESSEKS: I thought I was loud enough to hear in Aquebogue . MR. CHAIRMAN : Then we ' ll pull that mike over for you . I apologize . It just has to be plugged in , Mr . Esseks . Mr. Pachman , would you test that mike for us . MR. ESSEKS : If it would be helpful , I ' ll have Mr . Beebe in here or one of my clients testify as to the square footage as to each of the buildings . But that ought to lay to rest the question of whether there ' s a possibility any .::of.-these. are cottages . MR. CHAIRMAN : We can do that after we caucus . We have been down there to the site three times . We ' re aware of it pretty much'-- MR. PACHMAN: Mr . Chairman , unless I ' m --maybe it ' s something that I don ' t know about--and.:since this lot so be it is 12 acres has not been subdivided , it is deemed for the purposes of the ordinance as only one lot , and under the zoning ordinance it only permits one building on each lot. Now if they ' re going to subdivide this ,a.nd want to make these other buildings into separate and.:dis- tinct lots , I don ' t care what the square footage , if I was in error with reference to the square footage ; I apologize . I didn ' t mean to mislead the board in that sense because I don ' t think that ' s of any contest now. The issue -is that these 12 acres are deemed one parcel , one lot since there ' s no subdivision , and these buildings have been on this one lot. The ordinance says , unless there ' s a subdivision or some other breaking down of the 121, acres , more or less , that a'.permitted use , one-family detached dwelling , not to exceed one dwelling on each lot. You can ' t change that. And your dwelling unit is defined in this section , and it only defines that which this is not , a single , independent dwelling unit as I defined before , so I won' t go through it again . So unless there ' s been a subdivision , and therefore I haven ' t seen any proof on that , these 122 acres are one lot until otherwise changed . And the zoning ordinance says one detached dwelling on each lot . MR. CHAIRMAN : Mr . Esseks , anything else? MR. ESSEKS : Yes .. One last argument . Using that argument to its logical rationality, if a farmer has 100. acres , and he has -Southold Town Board of Appeals -11 - . -August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR . ESSEKS (continued) : a house at one end , and a half a mile away ,,- it -would be a half a mile away on a 100-acre farm, there ' s another house , that would mean they were both nonconforming uses--each of those houses . MR . PACHMAN : -It ' s not only irrational , that ' s my position . MR . ESSEKS: I ' ll accept both of those if ' that ' s his position of irrational . I submit then there ' s never been an interpretation of the town to that effect that no matter how large the parcel , you-"-re-- nonconforming as to use . It may be nonconforming as to setback , but it ' s certainly not nonconforming as to use . I submit that of this parcel on which there are five dwellings , were five acres , there might be an argument , or four acres , because then you could not have enough square footage and enough setback . But it is over 12 acres . And if you look at your cluster ordinance and see that the property could be divided and I believe that is the test , as to whether there ' s a nonconforming use or not , assuming the taking of his premise--and I don ' t accept his premise . But if you accept his premise , I believe his logic could only work if there were , if you could not divide this property either by a cluster subdivision or by a major subdivision . MR. CHAIRMAN : When you refer to nonconforming in this particular sense of this argument , you ' re referri.ng .. to_nonconforming use as to area with reference to setbacks , is that correct? MR . ESSEKS: Well , as a .. case points out-- I can ' t pronounce the name of the case . Amzalak verses the Incorporated Village of Roling Springs . If I may , Mr. Chairman , I ' d like to read from it , explain it : As to defendant ' s second contention , the court finds that the use to which the building has been put was residential and that it is situate in a residential district , this use is permitted as of right and not as a nonconforming use . It is unquestionably true . . . in.:: the case I ' m ready from , and not necessarily in our case , . .- . . . it is unquestionably true that the structure as such does not comply with the area and rear yard requirements of the ordinance , and possibly does not comply with the sideyard drequirements . However , this renders it only a noncomplying or a nonconforming building but not a nonconforming use . This condition of noncompliance was probably created by the adoption of the original zoning use ordinance and has con- tinued to this day. . . , which I think is a dramatically similar situation as is before the members of this board . And _so , Mr . Chairman , the point I ' m making is • Southold Town Board of Appeals -72- August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR. ESSEKS (continued) : the use on this property is residential and continues to residential . A nonconformity is not as to what you can do there . You can live there , that ' s all you can do . The nonconformity is as to coverage or setback . Certainly one of the cottages is a foot or two off the line . You couldn ' t build that today. So there is a nonconformity as to that . But certainly there ' s no nonconformity as to the resi - dential character of the property. And because the building is over 350 square feet , I believe I ' ll show, you can ' t have any arguments that they '.re tourist cottages , because your ordinance , right or wrong , defines it , tourist cottage under 350 sq . ft. So I tr.iedV_,to. e.xp.lain my situation , and I believe there was a case law to support my position . MR. PACHMAN: I 'm familiar with the Amzalak case before cited by Mr . Esseks , I.' m sorry , Bill -sometimes you make me forget your name--it was a Supreme Court case in Nassau County , and one must read that by reading the ordinance that they were interpreting at that time; and you can ' t use that case for the sitation that ' s being used unless you know what the ordinance for-nonconforming use was . And the.re ' s no place in the case , :iwhi.ch . is two pages in length , that defines what they call the definition of a nonconform- ing use . They start only with subdivision 7 of that particular ordinance and they' re talking about the ceasation .of a nonconforming use . And the case stands for the point , I respectfully say that they held in that case that there was no abandonment of the use , and that was the sole reason that decision was made in-' favor of the plaintiff in that case . Respectfully , I disagree with Mr . Esseks--that case doesn ' t stand for what it says . MR. CHAIRMAN : Are you saying , Mr . Pachman , Mr . Esseks is taking it out of context? MR . PACHMAN : No . I ' m saying many people cite many cases for many purposes . I ' m saying that it ' s distinguishable on its facts and not the way-- I 'm not saying it doesn ' t say what he says it says , it can ' t be applied to this particular ( ? ) . MR. CHAIRMAN : Mr . Essekt? Nothing . All right , hearing no further comments , I ' ll make a motion going into a recess for approximately five minutes . On ,motion by Mr . Goehringer , seconded by Messors Sawi,.U.:;.:ar d Grigonis , it was. RESOLVED , to recess for approximately five minutes , at which time the .hearing in the matter of Appeal- No . 3234 ,. TRUCKENBRO.DT AND OTHERS , would be reconvened. Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution - was unanimously adopted by all the members . --Southold Town Board of Appeals -13- August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) A temporary recess was taken . At 9 :41 p .m. , the board members returned , and the following resolution was adopted : On motion by Member Douglass , seconded by Member Grigonis , it was RESOLVED , to reconvene Appeal No . 3234 , matter of TRUCKENBRODT AND OTHERS , to continue the public hearing . Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was unanimously adopted by all the members . Richard Leslie apologized to the board for his prior actions , which was not intended as any disrespect to the ,board . MR. PACHMAN..: . I had submitted the papers submitted before the Health Department which was subpoenaed and they ' re in your record. I just want to bring to the board ' s attention there ' s an application signed by Janet Swanson for sewage and other information with refer- ence to water and sanitary systems ,on her application , she circles that these are cabins and bungalow colony on her application . And I can show you the part . It ' s. in your records . And that ' s her application signed by her. MR. CHAIRMAN : Mr . Esseks , J can assume that you wanted to put this into the record. MR. ESSEKS: Yes , sir. (The August 23 , 1984 Memorandum of Law was submitted for the. record from Esseks , Hefter , Cuddy and Angel . ) MR . CHAIRMAN : Mr . Pachman , we spent soime . t.i.me in there deliberat- ing upon this particular issue . We feel that there ' s no doubt in our minds that i.ts a:,nonconformity of use here , ok. It ' s not particularly germane to this issue in the respect that these particular buildings were always used for residential purposes ; and therefore they are not nonconforming . We also feel that since you had given us no testimony and lay no foundation for the issue of a tourist camp or camp colony that I really don ' t think that the board wants to entertain any testimony from the builder as to the dollar figures that were placed in this particular cottage , in these cottages , and that ' s the area that we feel at this particular time . MR. PACHMAN : Well , I think that the affidavits , and since I don ' t have -- in light of what you ' re saying , I ' d have to refresh my recollection , but the statements in the affidavit submitted by Mr. Esseks from the earlier owners of this property would show that they were cottages and they were used for rental purposes and that is in the record , plus the fact of Mr. Damianos ' testimony , how the buildings were used for purposes of leases by his employees for summer recreation and various overnight stays and various things like that indicates that they were , whatever the.i,r original use was , they were merely used as temporary residences which would make them cottages , and make them motel units which would go on all those other definitions , whether by definition in your own ordinance , whether they had 350 sq . ft . or not . I think the issue that the Southold Town Board of Appeals. -14- August 23 , 1984 Regular Meeting (Appeal No . 3234 - .TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR . PACHMAN (continued) : board is mistaken , and,.. I:'.m:.going ' to submit a brief and I think you said you would permit me to do that , because of the misunderstanding I had , that I will be able to show by as a matter of law in my opinion that the use of a dwelling unit other than by definition as what it was makes it a nonconforming use as it was abandoned . I don ' t want to belabor the issue any further . You . granted,,youri°:rul i ng ,.' and is I. respectfully obviously disagree with you at this point , and if you feel that the record is inadequate for the proof , and you ' re not going to put it in for that purpose , I think I would have the right to havel.an oppor- tunity to get that proof for this board if they feel that the record sufficient at this point. MR. CHAIRMAN : Only sufficient as to the foundation that . I had mentioned , ok , in that particular area -of-- MR. PACHMAN : Oh , as to the-- MR. CHAIRMAN : As to the camp colony issue or as to the tourist camp or whatever other summer community issue you want to refer to it as . MR. PACHMAN : I ' m somewhat confused. I don ' t mean to--if I had established , or at least the record for the purposes of the abandon- ment , I have a nonconforming use that I should be , or at least I have enough proof to allow that to go for a determination . I think subject to connection proof should be permitted to put in the issue as to the value , unless .this. board is going to make a temporary ruling and then set it down for another hearing , if that ' s what the board in their wisdom wants to , I could go with that. But I think it would be unfair to , if you consider it as to one purpose when it was appealed on the Building Inspector ' s statement that they were cottages , and that ' s why he gave a Certificate of Nonconforming Use and a compliance of nonconforming use . That ' s why we ' re here . And we ' re appealing that ruling . MR . ESSEKS : Hold on . Hold on . The Building Inspector did not rule it was a tourist cottage , and I would like to take three or four minutes to have testimony to show the size of these buildings to lay to rest any ambiguity that could be in the record based upon the fact I think , I think Mr. Pachman was sworn , and he said they were less than 350 sq . ft . and I don ' t want that to remain-- MR . PACHMAN : I indicated that ,..i.f. I erred in the square footage I would stand corrected on that , ok? Because I don ' t think that ' s ge.rmane to the issue of whether it ' s still a nonconforming use . MR . ESSEKS: All right , but , Mr . Chairman , if I may-- MR . PACHMAN : If you want to put in the square footage of the cottages , I think it ' s on the survey . The survey gives the size of the buildings . MR. ESSEKS: Well , then , may we have the stipulation that they are all over 500 feet? .. Southold Town Board oT Appeals '15' Rugust. 23 ,iv84 Regular Meeting (Appeal No . 3234 = TRUCKENBRODT/ABBOTT 'AND SWANSON , continued : ) . MR. PACHMAN : No . I don ' t know, I can ' t stipulate that . MR . ESSEKS : Well , I ' ll have Miss Swanson testify. MR. CHAIRMAN : Is there any objection to that , Mr, Pachman? MR. PACHMAN : That she ' s. going to testify to the square footage? MR. ESSEKS: Yes . MR. CHAIRMAN : Yes . To her recollection . MR. PACHMAN : From her recollection , I have no problem with that. But the record, shows the size of- these buildings . We can have the surveyor certify the size of the buildings_. MR. ESSEKS : I don ' t know that the surveyor purported to measure the size of the buildings . MR. PACHMAN : I -said we can -.have him to do that. MR. ESSEKS : We could . But I don ' t want to keep the record open unnecessarily . I asked permission to have -Miss Swanson ' s return . She ' s still . under oath , and have her state that she knows how to measure , and she measured them , and they measured blank by blank . I that ' s: a.11 right, it ' ll take less time to have : argue.d . then . MR . PACHMAN : If she wants to say that she measured them, I have no arguments . (MISS SWANSON .:made a statement - to her attorney that was not , aud.ible , ; but they were referring to the microphones working.. ) MR. ESSEKS: I don ' t think it works . MR. CHAIRMAN : Yes , it should. Do you want to check it? MR . ESSEKS: I ' m not a very good electrician . MR. CHAIRMAN : (To Lucy Steele). .' Would you raise your right hand? (Miss Swanson raised her right hand. ) MR . CHAIRMAN : Do you solemnly swear that the testim:ony' you are about to give is the truth , the whole truth , and nothing but the truth? LUDY . STEE.LE- ` I do . MR . ESSEKS: Do you have a high school education? MS . STEELE: Yes .- MR. ESSEKS: I mean , anything more than that? MS . STEELE: College , graduate school . MR. ESSEKS : Do you know how to use a tape measure? -- Southold Town Board of Appeals -16 August 23 , 1984 Regular Meeting (Appeal No . 3234 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MS. STEELE : Yeah. MR. ESSEKS: Have you visited the four cottages in question? MS . STEELE: Yeah . MR. ESSEKS : Have you measured them? MS. STEELE: Yes . MR . ESSEKS : Are , you able to tell the board what their measure- ments are? MS . STEELE: Yeah because I have them written down here . Ok . We measured the two , Number 1 and Number 2 are the same size and are built with a porch under the roof , and are 22 ' by 24 ' , which comes out to a total of 528 . Three and four are also the same size as each other , slightly larger. They ' re 22 ' by 24 ' with a porch added on extra , as an 8 ' by 12 ' porch . So the total for that is 624 , counting that porch which is not under the same roof as the rest of the house . MR. ESSEKS: Three and four are each over 600? MS . STEELE: Counting the porch , yes . - MR. ESSEKS : And one and two are each over 50.0? MS. STEELE:: Yes . MR. CHAIRMAN : Thank you . MR. ESSEKS: I have nothing more . MR . CHAIRMAN: Ok . Mr. Pachman? MR. PACHMAN : No further points on that question . MR. CHAIRMAN : Is there something else you would like to present, Mr. Pachman? MR . PACHMAN : No. Just for the record , .I take exception to the board ' s ruling . I would like to submit the supplemental memorandum of law I ' ve indicated I would have ready for tonight which will address myself to these issues . MR. ESSEKS : Mr. Chairman , I ' ve given him mine . If he submits a supplemental , I have no objection to it . I ' d like three days after I ' ve received it to advise you as to whether I wish to reply . I wish to , I ' ll reply within the three,'.days . MR. CHAIRMAN : Fine . MR . ESSEKS : I thank you very much for being patient for three nights . -Southold Town Board of Appeals -17- August 23 , 1984 Regular Meeting (Appeal No . 32j4 - TRUCKENBRODT/ABBOTT AND SWANSON , continued : ) MR. CHAIRMAN : You ' re welcome . Is there anybody in the audience that would like to address this issue? I' ll start with the pro first. (Nothing ) . Con? (Nothing ) , Questions from anyone else in the audience? (Nothing ) . Anything about this specific application? (Nothing ) . Any questions from board members? (None ),. Hearing no further questions I ' ll make a motion closing the hearing pending a receipt of a specific memorandum from Mr . Pachman and pending communique' an_d possibly receipt of an objection from Mr. Esseks . MEMBER DOUGLASS : Second. MR. CHAIRMAN : All in favor : Ayes : Messrs . Goehringer , Doyen , Grigonis , Douglass and Sawicki . MR. CHAIRMAN : Thank you very much for being patient. Moments later the Chairman consulted with Town Attorney Tasker concerning "closing the hearing" verses "recessing; " and the Chairman cal.l.ed Attorneys Esseks and Pachman for their authorization to amend the resolution for "recessing pending Mr. Pachman ' s memorandum and response from Mr . Esseks. Attorneys Pachman and Esseks authorized the recess instead of a closing of the hearing . MR. CHAIRMAN : I need a vote gentlemen to rescind the closing of that hearing : On motion by Mr . Grigonis , seconded by Mr. Goehringer , it was RESOLVED, .to rescind the prior resolution , above noted. Vote of the Board : Ayes : Messrs . Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was unanimously adopted by all the members . MR . CHAIRMAN : Now .I need a motion recessing this hearing until receippt of the above-mentioned brief and pending communique and possibly receipt of an objection from Mr. Esseks , as consented. Vote of the Board : Ayes : Messrs. Goehringer , Grigonis , Doyen , Douglass and Sawicki . This resolution was unanimously adopted by all .the members.. .The Chairman menti.one-d th-at, th,i,s_;•;t:i;me <.for .sub:missi on, .of._.the brief-s should be _reason--able .: pos's-i'bTy two to"tKiee.;weeks . , Southold Town Board of Appeals -18- August 23 , 1984 Regular Meeting The Chairman and the board members discussed the number of pending applications which are ready and anticipated for hearings in the near future . The board agreed that a part-time , stenographer would alleviate the burden on the Z. B .A. clerk and secretary , and would allow a greater number of hearings to be held in the same time period. The board members also agreed that .the 20-hour per week temporary help should be requested since Suzanne Walden returned to college early . Part-time assistance is required at a minimum from May through October. The board members discussed the Budget Proposals for 1985 and agreed to submit same as drafted ' (copy attached , page 19) of these minutes . It was also noted that the work load has increased by more than 1001 over the last couple of years , and that the proposed total budget is $13 ,215 over. a two-year period (1983 , 1984 and 1 985.) . The board members were in agreement that two-family housing zoning districts should be established in certain areas of the town , and when the two-family zoning committee meets , this should be given as a recommendation . Farm stands and their goods sold were discussed at length . It was suggested that the code should .be amended to allow sales of farm produce grown within the Township rather than. solely. on that premises . The..board.-members agreed to continue reviewing and noting each of the new 11 applications recently filed at the next meeting of September 13_th . On motion by Mr . Goehringer , seconded by Mr . Douglass , it was RESOLVED , that the date , . t%me and place of the next Regular Meeting of this board be and hereby is scheduled for THURSDAY , Sep ten!ber .l3 ; 1'984 at 7 : 30 p .m. to be held at. the Southold Town Hall , Main Road , Southold , New York. Being there was no other business properly .coming before the board at this time , the Chairman declared the meeting a.d.j.ourned. The meeting was adjourned at approximately 10 : 50 p .m. Respectfully submitted, 'XAZpp-roved . . n��walski Secretary - Septe er Southold Town Board of Appeals ' ESTIMATE OF EXPENDITURES . r 'Southold Town Board o _ :Appeals -19- August 2: 1,984 Regular Meeting For n in an;ird Qf AnLeals_ unit code 8010 (Administrative Unit) Expanded F3udg3t For -� Request For Lost Year This Year Ncct Your 14_R3 1984 19 £35 .1 PERSONAL SERVICES' (List all employees giving Title, No. of Persons L' Pay Rota) • 985 ZBA Member @5',500.00 x 5 - i* 984 ZBA Member.. 0 A 20 nn x 5 - $_185750.00 $ 21 .600_no sa ,5� 'hairman $3,500.0q 2 ,000.00 2,000.00 3 9500.00 =u11-Time Secretal� (8th year) _13.385.00!: 14,430.24 16,0 00.00 assistan o airman and er .o a oar `2 �:O0__ 'art-Time :[Xpi_q—anA_-seasDnkl• assistance .. _3,685.00 1 ,277.50 5,500.00 TOTAL — PERSONAL SERVICES $ 35,935.00 $ 37,895.00 $ 54,500 due nticipated two-family applications and present substantial increase in appl . , etc. - .2 EQUIPMENT (Show Individual Itemi) Calculator, l20. tranur_ibirl9_macidM, $ g $ '800.00 !commend Computer-, data bank etc. 1/3 cost if 'B purchases 2 0 ZBA share; lease is al t. posse b. Typewriter for add' l typist 650.00 TOTAL — EQUIPMENT $_ZG0_QD_ $25Dq0 ____ S l ,4 50;00" .4 CONTRACTUAL EXPENSES (List by major Items orT•ypes) $1 ,115)IE14 typewriter lease*& maintenance agmt; $ $ $ film, inspection reports J. Davis; k� F_ T_ nn-sito inspections airfare; F.I. Member attendance at Southold mt;etinas: subscriptions/law manual ; Stationery; typewriter ribbons & supplies: advertising legal Notices; _ Assosication of Towns' Meeting; Legal Counsel on litigation matters; legal opinions; (less savings on older model transcr. - mainten agmt)TOTAL — OTHER EXPENSES $ 17,500.00 $ 10,075.00 $ 10,900-.00. TOTAL FOR .ADMINISTRATIVE UNIT $ 53.635.00 $��,ZS�n+ a667850. Romorkst Appointment isre' quested to meet with the Supervisor and Town Board concerning proposals for 1985. Date: 8/ /84 Prepared A Submitted by Title Chairman •Whole employee is compensated from more than one administrative unit, show of ■glory and apportionment. 1 k FORPA EE WILLIAMSON LAM 9004 CO.,nOCNCSTEq, M. Y. 14609 RECEMD AND FILED BY TILE SOUTHOLD TOWN CIS DATE /�1�� HO Tomm Clerk, Town of Southold