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HomeMy WebLinkAboutZBA-01/24/1985 PH 9 * r Public Hearings aOUTHOLD TOWN . ZBA Regular Meeting , January 24 , 1985 #3296 - At 7 : 40 p.m a Public Hearing was held in the matter of JOSEPH and ARLENE LESTINGI , to locate accessory building in frontyard area. (Recessed from 12/13/84) . MR. KAPPEL: I think the application, in this case , is self- explanatory. We requested to build a garage in the frontyard; this is waterfront property, and construction of a garage in the rearyard would obstruct the applicant' s view. Due to the size of the house and width constraints of the property, it is not feasible to build the garage on the side of the house . That' s pretty much;it, and I am available to answer any questions . CHAIRMAN GOEHRINGER: As you know, it is the concern of this Board in the construction of accessory buildings, that they not be used for any habitable use. MR. KAPPEL: Under no circumstances will this be used. for other than a garage and storage building. CHAIRMAN GOEHRINGER: I.s it a. one-story structure or a two- story structure? MR. KAPPEL: I think it' s a one-story structure. Yes . We have no objection to any restriction you may place on the variance prohibiting anything other than a garage or storage building. Thank you very much. CHAIRMAN GOEHRINGER: Thank you very much. MR. KAPPEL: Do you anticipate acting on this tonight? CHAIRMAN GOEHRINGER: Probably not at the moment, but sometime later on. Is there anybody else who would like to speak in favor of this application? A garage in the frontyard area, 26' x 40 ' . . Anybody like to speak against the application? Hearing no further questions , I make a motion closing the hearing, reserving decision until later . -------------------------------------------------------------- #3309 - At 7 : 45 p.m. a Public Hearing was held in the matter of HENRY J. SMITH & SON for approval of insufficient width, Peconic Lane and Carroll Avenue, Peconic . R. BRUER: Mr . Chairman, Members of the Board, I obviously request that the Board grant the variance. This has been before the Planning Board; it' s been hanging around since last June. The necessity of the variance is I believe , Lot I , because it is not sufficiently wide enough on the road. I believe as to Lot II , if I am not mistaken, that is sufficiently wide enough, not necessarily on Carroll Avenue, but wherever the building line is . r r ZBA 1/24/85 Page 2 SMITH HEARING - continued R. BRUER - continued: . There is a hardship if he can' t divide the property. It is industrial zoned and the ultimate use of the property will remain the same. It, is not going to change the character of the neighborhood. There is one thing I am a little concerned about. This afternoon I went up and reviewed the file and I . noticed a letter in there in .response to a letter from the Board from Mr. Lessard. He said. . . "the amended plan now meets the area requirements for lot size in "C" zone area, however , both pieces in this minor will require width variances. That area in- dicated as private road is part of Lot II., and until such time as this is developed and removed, it will have to be treated as such. The right of way is indicated in the James and Ruth Hubbard property that this private road is their access , then only one width variance is required by 280 A on Lot II is required. . " I believe the 280 A would really be for the Hubbard piece, wouldn' t that be true, Mr . Lessard? I don' t know if you have a map in front of you. I don' t mean to put you on the spot. MR. .LESSARD. You have to have the ability to get to Lot II regardless . Now, you would have two ways to go. If there is no restriction from the Hubbard Property, you use this to get to the Hubbard property, then a variance for an insufficient width . will solve the problem. If there are restrictions on that little neck of land that involves other pieces .of property, it would have to be. through the right of .way and then you wouldn' t need a width variance. R. BRUER: I would like to - be in a position to tell my client, assuming the Board grants this application, that I am not going to have to come back in the future for some type of 280 A, be- cause I don' t believe we really do and if that' s the case, and the Board has a. discussion tonight regarding this , I would ask them to amend the petition to request . the . 280 A, if that is re- quired, under 2675 of the Town Law. I think you have the ability to do that, under the facts in front of you. I don' t think it' s required and I think that' s the access that' s going to be used for the property in question, I forget their name. I feel con- fident, but I haven' t spoken to Mr . Smith about that, I don' t think any obstruction will be put in that 50 ' area, because we couldn' t,, we have to be , the building line has to be. . . . MR. LESSARD. What I tried to do is solve both problems . I don' t know if there is anything restricting that small neck in there. R. BRUER: I don' t know of anything either , I am trying to get the problem resolved tonight rather than waste this. Board' s time again in the future. r � ZBA 1/24/85 Page 3 SMITH HEARING - Continued CHAIRMAN GOEHRINGER: This 50 ' x 50. 03 x276 . 06 is a deeded piece of this parcel, . is it not? R. BRUER: It' s part of this parcel, yes . CHAIRMAN GOEHRINGER: The discussion of 280 A is mainly discussion then of covenanting or restricting it to the point where this parcel is not built upon or constructed upon for legal access , is that what you are referring to, Mr. Lessard? MR. LESSARD: No.,If Mr . Hubbard has some claim that he has the right of access across that little neck of property, it may not be. I just looked . . . R. BRUER: Henry told me he thought that was the case. . MR. LESSARD. . .We want to resolve it,. but I want to put all the facts in front of us . R. BRUER: That' s why I am bringing it up tonight. MR. LESSARD: If there ' s no restriction to. the Hubbard property then we should give you the width variance. If you do not need a width variance, you need a 280 update so Mr. Hubbard has a right to use it. in case he is not going to get cut off . R. BRUER: Mr. Hubbard' s not going to be - cut off . We either .need a 280 A or we don' t. It might be Mr . Hubbard needs a 280 A, since he is the landlocked parcel., but it' s not Mr . Smith. I am sorry I didn' t discuss it with you before. It-think if there is a 280 A required it is Mr . Hubbard' s problem, not Mr . Smith; he has the road frontage . MR. LESSARD: The responsibility goes to the landowner , that' s the only way I can look at it. I mean, if .I own the land obvlbusly I wouldn' t feel that you could come in and tear up my land to satisfy your wants . R. BRUER: Mr. Hubbard has a right over Mr . Smith' s property and Mr . Hubbard now goes for a building permit, he is the one who will need the access , not Mr. Smith, he' s got it. I would just like the Board to take care of it tonight. He has road frontage and he has the width of the property to the building line. I don' t see why he needs: an access variance. If anybody needs it it is Mr. Hubbard and that will come up at such time as he wants to do something. CHAIRMAN GOEHRINGER: How would you like us to interpret this , Mr. Lessard? ZBA 1/24/85 Page 4 SMITH HEARING CONTINUED MR. LESSARD: Well. . . . CHAIRMAN GOEHRINGER: . . .Bearing in mind that if there was a legal access required, that we would normally send the Town Engineer out to look at it, etc . , . . MR. LESSARD: The major concern is that Mr. Hubbard has a right across that property and it has to be treatted as a 280 A, so that the person who owns the property cannot/ anything there to obstruct passage. The research should have been done on it, I am sorry. R. BRUER: May I make a point. Mr . Hubbard does have a right to it via an easement. That easement, if he has such a right, gives him the right to get there and not to be obstructed. It is what it is , I don' t know what his right is . It' s like what Mr . Lessard said, I am dealing with Mr. Smith tonight and I just want to clarify that because of some' action of Mr . Hubbard in the future, I don' t want to have to come back here, when as of tonight, Mr . Lessard, I think we really don' t need a 280 A just for this particular piece, under the facts presented to the Board. CHAIRMAN GOEHRINGER: Okay, we will treat it then as if a 280 A exists , however., that any action of the Board will be put on notice that this particular area of this parcel not be con- structed upon. R. BRUER: To . the extent that Mr . Hubbard has rights over it? CHAIRMAN GOEHRINGER: Yes . R. BRUER: I don't think the Board should create rights in the name of this person. He' s got what he ' s got. CHAIRMAN GOEHRINGER: No, we are not creating rights , we are just, if there other people using it, we don' t want to bar them. R. BRUER: That' s fine and they shouldn' t be barred. Thank you. CHAIRMAN GOEHRINGER: Thank you very much. Is there anybody else who would like to speak in favor of this application? Anybody against the application? Hearing no further comments , I make a motion closing the hearing, reserving decision until later . ---------------------------------------------------- #3308 - at 7: 55 p.m. a Public Hearing was held in the matter of LAUREN KRUG to attach accessory garage leaving insufficient rearyard setback of principal building. CHAIRMAN GOEHRINGER: Anybody like to be heard on behalf of this application? Anybody against this application? Questions from Board Members? Mr. Lessard , if you remember this denial, when a person takes an accessory structure and adds it to an existing building, do they then have to bring this particular accessory ` ZBA 1/24/85 Page 5 KRUG HEARING CONTINUED CHAIRMAN GOEHRINGER: - continued. . .up to the present energy codes? What does a person do with a garage floor , do they break this garage floor up or do they insulate over and above it, what do they do? MR. LESSARD: It depends on how it is designed. You may need a firewall. If he were to change it into living quarters , chances are he would have to put 18" of crawl space underneath it. Again, he may have to remove .all the cement and go down a foot, I don' t know. I will have to study it; what he proposes to do. CHAIRMAN GOEHRINGER: Okay, so that the granting of this appli- cation should include that an appropriate building permit from your department be gotten? MR. LESSARD: Yes . CHAIRMAN GOEHRINGER: Thank you very much. Hearing no further questions , I make a motion closing the hearing, reserving decision until later. -------------------------------------------------------- #3310 - At 8: 00 p.m. a Public Hearing was held in the matter of GARY DOROSKI to locate accessory storage building in area other than rearyard. CHAIRMAN GOEHRINGER: Would someone like to. speak in favor of the appl ication? Anybody like to speak against the application? Questions from Board Members? How do you want to treat -this ap- plication, gentlemen, bearing in. .mind that Mr . Doroski has not come to this hearing and we don' t have the approximate distances that he is proposing? I will suggest to the Board that we close the hearing on this particular application and that we send Mr . Doroski a letter indicating approximate distance from the private road referred to as Monsell Lane , and I am not talking about the south side of the house , which I believe we have a dis- tance of 18' , sorry 31' ; I am talking about the north side of the house, which is near Conklin property,* which appears to be a little bit farther . So, I will close the hearing on that basis . All in favor . . ------------------------------------------------------- #3303 - at 8: 05 p.m. a Public Hearing was held in the matter of FRANK FIELD REALTY (Recessed from December 13th) . FRANK FIELD: I think I answered everything at the last hearing, but I am here to answer any questions you may have. I think it will be an improvement to the area, the community. ' CHAIRMAN GOEHRINGER: As you know, Mr . Lessard and myself were down last week and we did. go through your building and we thank you for being there. It is my understanding that this week the Town Board has renewed your trailer permit? ZBA 1/24/85 Page 6 FRANK FIELD REALTY HEARING Continued FRANK FIELD: That' s correct. CHAIRMAN GOEHRINGER: You have given us a copy of a letter in the file where we asked the question of who was the actual owner of Frank Field Realty and you informed us that you and your .wife are the owners of Frank Field Realty? FRANK FIELD: That' s correct. We are sole .owners. CHAIRMAN GOEHRINGER: I don' t have any other specific questions . I know there was some concern from the neighbors across the street concerning water runoff. Would you elaborate on that for us? FRANK FIELD: While you were there , I mentioned I would be willing to remove some of the soil, lower the grade down a reasonable amount to conform with the level of the road, if that would be satisfactory to the neighbors .. CHAIRMAN GOEHRINGER: I thank you very much. Anybody. else like to speak in favor? Anybody like to speak. against? ANTHONY DINIZIO: Sorry I didn' t make the first hearing. I am one of the first ones who built on that street and know the situation that is at hand and everytime I had to come up to this Town Hall, I got the runaround. In. fact I almost got kicked out by this man last: time I .came up. He wouldn' t answer any of my questions . Iwould like to express . my. feelings on this . The neighborhood, we have had promises , promises , promises over the last 6 or 7 years and nothing has been done. The water situation over there has just worsened and worsened. . Everytime someone builds a house , including my sons ' s two houses , it has worsened the water situation. I don' t like getting up three o' clock in the morning because I got a phone call, my cellar is full of water . And Mr . Dean has" been more than fair with us about trying to divert the water. The situation is out of hand. My son has spent all kinds of money and I have spent all kinds of manhours trying to divert the water out of his cellar . I think it' s the Town' s job now to do something about this water and I would like to rest my case right there. Naturally' the more housesyou put up in .the area, it worsens the water situation. He' s been flooded out half a dozen times and I don' t think it' s right. I mean, you give him a building permit to build, somebody should go over there and look at. the water situation and I am sure Mr . Douglas knows what it is all about because he helped grade the place. ZBA 1/24/85 . Page 7 FRANK FIELD REALTY HEARING Continued CHAIRMAN GOEHRINGER: Would the suggestion that_Mr.. Field had mentioned help your situation? ANTHONY DINIZIO: That won-'_t help one bit, because the water comes from all over. I have been living ther for 35 years , and believe me , I know what I .am talking about the water. CHAIRMAN GOEHRINGER: What are you basically saying would help your situation? It probably has nothing to do with this application. ANTHONY DINIZIO: The more houses you put up, the more water you are going to get, because you are taking away from. . . .what it . needs is someone has to put a sump in somewhere, to take care of the water. I would think that would be first thing on the agenda. Get rid -of the water first, then you could build up. the rest of the lots with houses , but let' s get rid of the water situation first. CHAIRMAN GOEHRINGER: Can I just ask you one, question? I believe your son had asked about the moving of the two houses of the 7th Street Corporation to 2 lots around theoDrner from your piece, how they were turned down for a 2-family house. What we are looking at basically is an improvement situation. to this particular area and I am just- trying to get a handle, and the Board is trying to get a handle on the specific application that/ gentleman has brought before us and that is , would this construction of a 2 -family house in this particular parcel help your area or hinder your area? Now, you are telling me from a water point of view you feel it' s going to hinder the area. ANTHONY DINIZIO: Definitely. The man, Mr. Fields , had_ me over one day, we had a very nice talk and he wanted to fix up the place he had. It' s there , but yet, not, this man sags you can' t do it. Why can' t he fix up his own place? If you make him tear that down, and put up two more houses , you are worsening the situation, you are not bettering it, asfar as law. goes . CHAIRMAN GOEHRINGER: I think he wants to construct a 2 family house? ANTHONY DINIZIO: That would be worse yet. CHAIRMAN GOEHRINGER: I thank you for your opinion,and I hope that your water situation improves . Is there anybody else ,who would like to speak against the application?. PAUL DINIZIO: I would like to speak about this 7th Street Cor- poration if you have any questions on it. ZBA 1/24/85 Page 8 FRANK FIELD REALTY HEARING Continued CHAIRMAN GOEHRINGER: I have no questions on it, I know you mentioned it the last time. PAUL DINIZIO: Yes ,my name is Paul Dinizio, 637 Brown Street, Greenport. There is one thing I would like to say about it, okay, now my wife and I invested in this venture for the sole purpose of making money. I am sure that' s why everybody invests in some- thing. I am sure that' s Mr . Field' s intentions. If it is not , I am sorry, maybe I am wrong, but. I am sure that' s his intention. Now, by denying us , you denied us the right of making a little bit more money, okay, now what I feel is good for one . is good for all in the area. Now, I was , here' s one question I would like to ask the Board. This appeal that he has put in, does the Building Department have to approve the building and the sites first for this appeal, or did the building department deny it? CHAIRMAN GOEHRINGER: They denied it. PAUL DINIZIO: They denied it? Okay. 'But asfar as what .I was saying before , you. did .not give it to us , so I feel you should not give it to anybody else in the area. You set a precedent once so you should .stick to it. Thank you very much. CHAIRMAN GOEHRINGER: You are welcome. Anybody else like to speak against the application? Mr . Field, do. you have anything else to say in rebuttal? FRANK FIELD: All I am trying to do. is improve the neighborhood, and what we are doing is removing two structures and replacing it with one structure to house two families . We are not in- creasing the number of units available or decreasing, we are maintaining a status quo, but we are upgrading the housing in the area. Iwould like to straighten out that I have not been turned down on repairing the structure after the fire. I have not requested permission yet because my wife suggested that it might be better to build two new structures and get rid of the two old. CHAIRMAN GOEHRINGER: I was referring to the denial of the construction of the 2 family house. FRANK FIELD: The procedure you have to use is you put in for a building permit and the building inspector looks at it and-.says you are not conforming, you are in violation of the zoning require- ments therefore, I deny it, and then the next step is to come before this Board here. But, he mentioned about the house that was damaged and there is no problem with the building department with that because I haven' t requested permission, but I have had a general discussion with them about what is required. Thank you very much. Any other questions either pro or con on this application? ZBA 1/24/85 Page 9 FRANK FIELD HEARING, CONTINUED .CHAIRMAN GOEHRINGER: Hearing no further questions , I make a motion closing the hearing, reserving decision until later . ------------------------------------------------------------ #3311 - At 8: 20 p.m. a Public Hearing was held in the matter of ROBERT. .CELIC for a variance to build addition with insufficient rearyards . ROBERT CELIC: Gentlemen, we are awfully crowded in. the office. The primary reason for this extension is to facilitate the pro- blems we have now. My co-tenant, the hairdresser , has also the same problem of being crowded. She has expressed interest in renting the area I have. We would basically end up having an office for real estate purposes , of twice the - size we pre- sently have. So, it is rather cramped at the moment and of course, and I guess you realize. by looking.. at the plan, am pro- posing the additional section .within the addition for a rental income facility, which would help accomodate my income outlays in constructing this , as well as pay the taxes and everything else. Asfar as the architectural detail, I think it would uplift the general neighborhood, because it will. be along the Cape, . Cod-dish lines , unlike most of your new commercial buildings , within that general neighborhood. It will be quite nice, as long as I can afford it. Thank you. MR. GRIGONIS : Is there anybody else here who would like to speak on behalf of this hearing? Anyone in opposition? As you probably know, Bob, there is a letter in the files .with somebody having an objection to this . ROBERT CELIC: . I did answer ..that letter. MR. GRIGONIS : That' s my neighbor to the south and I believe my explanations are sufficient. Thank you. Any questions from the Members? I make a motion closing the hearing, reserving decision until later . (Mr. Goehringer was absent . during the hearing . ) ------------------------------------------------------------ #3307 - AT 8: 30 p.m. a Public Hearing was held in the matter of ADELE. V. DECKINGER for. a variance to locate pool and accessory building in frontyard. ADELE V. DECKINGER: I really have nothing to add, unless you have some questions of me. CHAIRMAN GOEHRINGER: Can you give us an approximate distance from Soundview Avenue to this pool, if it is constructed? ADELE V. DECKINGER: About 300 ' . ZBA 1/24/85 Page 10 DECKINGER HEARING - .Continued CHAIRMAN GOEHRINGER: 300 ' exactly, so if .we grant you the pool and we write 300 ' in there , you will be happy with 300 ' ? ADELE V. DECKINGER: Well.,. it might be more than that, .because my existing building is 400 ' , so it would be within at least 300' . CHAIRMAN GOEHRINGER: So, if we give you this proposed, we grant - you this proposed application, and we say not closer than 300 ' , you would be happy with that? ADELE V. DECKINGER: Delighted. CHAIRMAN GOEHRINGER: And how far is the storage building from the sideyard? I see a figure of 15 ' there. ADELE V. DECKINGER: Well , the cesspool is in the way. It would just be a little changing room. CHAIRMAN GOEHRINGER: Well, it will be 15 ' from the west property line? ADELE V. DECKINGER: Oh, yes , at least. CHAIRMAN GQEHRINGER: Would .the swimming pool area be lighted in any way, as to become obstrusive to any neighbors? ADELE V. DECKINGER: . No. CHAIRMAN GOEHRINGER: Is there .anything that any of the neighbors have said to you that they object to this . We did meet with Mr. Linsner , and he is a very nice gentleman, and he said he had no specific objection to this application. Let' s see if anyone else has any objection. Thank you very much. Is there anybody else who would like to speak on behalf of this application? Anybody like to speak against the application? Questions from Board Members? I have no objection to this application. I there- fore offer a motion on it. The motion should, however , include as I mentioned to the applicant, that the swimming pool to be con- structed not be any closer than 3.00 ' from Sound Avenue and that it conform to all the normal setback requirements under the zoning code; that the storage building of 10 '. x 15 ' not be any closer than 15 ' to the property line and that this particular storage building not be used for habitable purposes and it will be lighted. You will have electricity , in this storage building? ADELE V. DECKINGER: We didn' t discuss it. I don' t know. CHAIRMAN GOEHRINGER: But it is not going to be used for habitable purposes? ADELE V. DECKINGER: No. ZBA 1/24/85 Page 11 DECKINGER HEARING - Continued CHAIRMAN. GOEHRINGER: I make a motion including everything I have just stated, approving it to include. the conditions I .have just mentioned. (Motion unanimously approved) . Thank you very much for coming in. ADELE V. DECKINGER: Thank you. ---------------------------------------------------------------- #3313 - At 8: 35 p.m. a Public- Hearing was held in the matter of SERGE DOYEN for a. variance to approve insufficient width in pro- posed setoff . SERGE DOYEN: Thank you, Mr . Chairman. The application speaks for itself . - I came prepared to answer any questions and the op- position letters that are part of the file, but insomuch as my attorney was ill and could not be here tonight, I would like to reserve the option for asking for a recess , should that become necessary. If not, then I will not ask for the recess , and I would be glad to answer any questions on . the application. I have some photographs , but I didn' t bring them with me. They are aerial photographs and ground photographs of the.. property in question. CHAIRMAN GOEHRINGER: Thank you. SERGE DOYEN: Gerry, did you want to read those . letters .of opposition? CHAIRMAN GOEHRINGER: I will read them (Reading letter of Gene N. Dunlap) . (Reading letter of Martha Kent Gray) . Would you like to address. those- two? SERGE DOYEN.: Surely, .that last one .is Gray. Gray and Dunlap are brother and. sister. and. they own the property adjoining me. So, those two letters - are originating from the same land. Of course, the application itself answers the Gray letter. That is the reason I am asking for a variance and that speaks for itself, insomuch as it is not changing. the character. of the neighborhood because of the other small lots . Of course , I want to be a .good neighbor and I don' t mind addressing myself to the second letter, in- which the request is made that the placing .of a structure , should it be built, on this lot, be situated in such a way, I guess what we .call in the business - there would be no visual pollution - and I am amenable to that because the property lends itself to placing the house in the northwest corner , which would be out of the line of sight or visibility of any of my neighbors . If I only took in consideration the Gray request to place the house on the lot, then I am not taking into consideration my other two .neighbors , one in particular . So, I would like to consider .them all - my neighbor on my east, on the west' and the .Currant house, no matter who the owner is . Because of the topography, and the elevations , even a two- story house can be located, which would be impossible to be seen by any of my neighbors . So, in addressing the second letter , I want to be a good neighbor and certainly don' t want visual pol- lution any more than they do. ZBA 1/24/85 Page 12 DOYEN HEARING - Continued CHAIRMAN GOEHRINGER: Mr . Doyen, assuming you place this house in the northwest corner that you refer to, will that have any visual effect upon your neighbor? SERGE DOYEN: Well, it' s the idea I am trying to convey. Because the elevation where that is is 20 ' , where the grade is , the bottom minimum elevation must be at least 75.' . My house has a minimum elevation of 55 ' and the neighbors on my east have an elevation of at least 80 ' . So, I think in between the grades is where I would covenant the property for a house, I. would, I am as certain as I can be that with trees in between up to 80 ' high and with the elevation of the northwest corner , I can't see how any part of the house would be visible to neighbors . It certainly wouldn' t be from neighbors on the east. So, as I say, I know these are not technically legal questions to have to be concerned by the Board, but I want to be a good neighbor and so I think I would be fair to the adjoining property owners , if I did covenan,t. to have a structure only being built on that part of it. CHAIRMAN GOEHRINGER: Do you object to any restrictions by this Board that th.e house be in the northwest? SERGE DOYEN: No. CHAIRMAN GOEHRINGERI : 1 .Do you object to any height requirement .res_tric- tions? Say, that the. house should not exceed 30 ' in the air? SERGE DOYEN: Well, I think. there is a current ordinance. I think it is 35.' ? Well., I don' t think that' s .necessary then, we can leave it a.t ' 35 ' or we can put it in., it doesn' t make any difference, 5 ' , it will not be in the line of sight of the Gray. structure. the Gray structure:; as I say', between the tree barrier and even if there were no trees , the line of sight. precludes viewing any structure up to 35 ' . MR. LESSARD: I don' t believe that this Board his the authority to restrict a building area on a piece of. property. If it went to Court, it wouldn' t hold up 5 minutes . This Board can' t say . you can have this , if you build a house a certain way, no, that' s not legal. . SERGE DOYEN: Excuse me , I concur with Mr . Lessard. I want my neighbors to know that I want to. MR. LESSARD: If you wish to put in those covenants when you sell the property, then that' s your . _,perogative, but this Board does not have the right to do that. SERGE DOYEN: I have to concur , but I want my neighbors to know that that' s what I intend and what I would do and will do. It' s the most practical way to use the property. ZBA 1/24/85 Page 13 DOYEN HEARING - Continued CHAIRMAN GggHRINGER: You will agree, however, that we . do have the right/restrict the height. MR. LESSARD: State law restricts the height. CHAIRMAN GOEHRINGER: We have the right to reduce that height. MR. LESSARD. I don' t believe so. That wouldn' t hold up in Court, either. Trying to restrict a main dwelling, I don' t know, . it won' t hold up. CHAIRMAN GOEHRINGER: I thank you. Thank you, Mr. Doyen. SERGE DOYEN: No more questions . CHAIRMAN GOEHRINGER: None. Are there any other persons who would .like to speak on. behalf .of this application? Against the application? This particular application we find somewhat dif- ferent from the normal application that we get from Fisher ' s Island in the respect that this Board, pretty much in its entirety has seen this piece of property, Mr . Doyen, when we were over to Fisher ' s Island in 1983 . We understand the topo- graphy of the piece and understand the nature of your neighbors claim or objection, so to speak. We do understand that you did have intent of doing this prior to the change of zoning from one acre to two acres . I still think we do- have the right regardless to restrict height of the particular structures although the scenic easement, so to speak of the surrounding property owners are not within the discussion of this particular application. Bearing that in mind, I will make a motion closing this hearing , and we will deliberate upon it, as we have done on several of them tonight. Is there anybody who would like to speak against it before I close this hearing? Hearing no further questions , I make a motion closing the hearing, reserving decision until later . ---------------------------- Hearing Closed at 8: 45 p.m. Open Discussion Followed Respectfully submitted, B rbara Strang (These minutes were transcribed from tapes recorded in my presence) . . •L i ZBA 1/24/85 Page 14 OPEN DISUSSION CHAIRMAN GOEHRINGER: There are some attorneys present that are going to present some factual data concerning 100-118 , after the nonconforming zoning code interpretation. Are there any attorneys present, yes . Could I have your name, please and could you approach the mike? WILLIAM MOORE: My name is William Moore , from Tooker and Smith, Riverhead.. I wasn' t going to make any formal presentation. I have presented the Board a letter which was delivered this morning and all we are requesting , we represent Richard' T. Carr , who is an option holder on a piece of property in New Suffolk, all we are interested in determining what 100-118 E & F interpretation as given in the facts set forth in the letter. I wasn' t prepared to take your time up with this . Just to get your determination to an answer to that question. I didn' t expect that you would have. an answer for me tonight. . CHAIRMAN GOEHRINGER: I was of the impression that the Town attorney, or the attorney representing the building department was going to come and argue this particular issue, but I don' t see Mr. Lark here. Is there anything that the building depart- ment would like to say on that? MR. LESSARD: No, we are taking the position that the use of the present building is in conformity with the zoning area. Non-conformity would probably exist in the setback requirements according to zone, so asfaras .. the use is concerned, I don' t believe should even be considered. Mr . Lark is here if he would like to comment on what I have said, of course, he doesn' t know what I said. If you would look under Section. 100-13 and the definition of non-conforming use. . . .reading from Section. . . . So, it' s not non.-conforming use. CHAIRMAN GOEHRINGER: This has caught my totally by surprise. I didn' t think we were responding to any one particular piece or parcel of property. I thought we were having just a general interpretation of 118 . Mr. Lark do you have something that you would like to say? R. LARK: The questions came up as to what is meant by that 118 Section, E & F, non-conforming uses . Since we are dealing with the statute, i.e. . , the zoning ordinance, you got to find out, first of all if it' s been defined, the word non-conforming use. and Mr. Lessard quite correctly referred to you the 116 Section where they do use the word non-conforming use. And again, as he indicated to you it refers. to any use?f w�ether a building or a tract of land or both consizting_th�e/day �iis chapter, which does not conform to the use regulations. And when you read 118 in its entirety from the Preamble , where they refer to uses , you are back to the same situation that 118. is addressed to uses . 4 ' � ZBA 1/24/85 Page 15 OPEN DISCUSSION - Continued R. LARK: continued-- Now, it is true .in E & F they talk about a non-conforming building in the first two, three words of the sentence, but then they turn right around in the ordinance, after they go through this 50% 'business , and. I can cover this in.- another minute here, but then they go right back and refer. : . " . . .unless the use of such building has changed to a conforming use. " Now, I have given it a lot of thought and if our zoning ordinance in the definition section had referred to a non-conforming structural lot, like some zoning codes that you will see, where they refer to the lot, structure, etc . , on the lot, and then after the zoning ordinance is enacted, it becomes non-conforming on the effective date of the ordinance, then we would be in a different situation. But on. the limited question that has -been posed as to whether E or F apply'. to just-. a building where the use is valid, I don' t think it does. Now, an example, and I have Mr . Horton here and he can give you the specifics , ie.. , pieces of property, but an example would be if you had an A-residential zoning district ever since 1957 and before , and people constructed their house 10 ' from the front street, so you had a 10 ' frontyard, and it always had been that way. I will take a situation on a street wherein there is no established setbacks , we just have one house on the street, Zoning goes . in and establishes a 50 ' frontyard. Five years later the house is remodeled or destroyed by fire. The people want to rebuild on the same .spot, same foundation. the building department has historically given them a building permit to do that, even though it' s only a 10 ' frontyard. The theory being that the use is still conforming. The use is residential. Now, I know that sounds inconsistent in a sense, if you take the same house on the same parcel of .land and it' s put up when it' s business and. then later on it' s upzoned to A-residential and it burns down, there the use is changed, you have a non-conforming use. . You have a business in a residential district. And if .the building is then destroyed then you would have to conform, because the use .of the building has changed to residential. But there, the building department tells me, where you have a business use in a residential neighborhood and it' s destroyed, if it' s restored according .to code, that it. is converted to a residential use and they build it according to the build code in effect at .the time, they would allow .the "footprint" , as the word . has been euphemistically used here, and they could put it up with a 10' yard, and it would not require an area variance. Mr. Horton is here and he can cite you some examples , where buildings have been taken down that no longer conform to the sideyards or rearyards setbacks , and they have interpreted it to allow the structure. This came up in quite of a different context, which is what you are aware of here.' Now, another in- teresting side question has been posed. Ihave not researched ZBA 1/24/85 Page 16 OPEN DISCUSSION - Continued R. LARK: continued this use district since 1957 , but I have been told that it' s always been a "C" Light industrial District, where shipyards have been a permitted use , providing they have a special exception. I have also been told that this property might not have a special exception because it was pre-existing prior to zoning . It' s been represented that it has been there for 100 years'.-.or .so, as a shipyard. So, a special exception has not been ever passed by the. ZBA, since enactment of zoning in 1957 . Now, if that' s the case , and interesting , .but not so esoteric question has been presented. If that use has been abandoned for more than 2 years , which it hasn'.t at the pre- sent time. I have been told that the use will have been abandoned by two years , either in May or June of this year , 1985 . Then they are going to have to come in here and get a special ex- ception to continue that use for that property, if they let the 2 years come and go. They never got a special exception. It' s only a permitted use under the ordinance today if you have a special exception. The non-conformity of not having a special exception can go on forever providing it stays continued , no matter what the use district says . . They tell me it has always been zoned for that type of use subject to .this special exception. So, that' s another interesting wrinkle. That question is not before you today because the 2 year period has not expired, There is probably no question that it was used sometime during 1983 , so that won' t expire until the Spring or Summer of this year . Clearly, the building inspector. tells me that it was not used as a shipyard, in this particular section during the calendar year 1984 , so that' s another question that they are going to have . In talking with the developer and their representatives , it was clear that what they want to do ultimately they are going to have to come in for a special exception and . various permits , anyway. The issue that came up this time as to whether or not the building which are non-conforming in the sense they don' t have required setbacks , do they require a variance, or something special from the Board of Appeals , if they are to rebuild them in the exact same spot? The building department took the attitude if you rebuild them according to code, they can go up in the exact same spot. If you move the buildings in any way shape or form, and are not within the 5.0 ' frontyard setbacks and 30 ' sideyard setbacks , then you would have to obtain a variance,which would then bring it in the jurisdiction of the Board. That' s the position of the building department. Other people have taken the position, including their own counsel, that might not be true. Since the buildings are non-conforming in the dictionary sense, or to rebuild them if they are torn down, they would require a variance. ZBA 1/24/85 Page 17 OPEN DISCUSSION = Continued R: LARK - continued. . We do not feel that that' s applicable and .hence , the Town Board suggested, and they readily agreed to come before tkis Board to get an interpretation of the zoning ordinance for that . limited question as to whether or not a building which does not conform to the present sideyard or frontyard setbacks , if torn down and rebuilt according to code, at the present time, could it be built on the same spot? Or is that a non-conforming use? Therefore, it would require a variance from you people, that is the precise question. We take the view in the building department it makes no difference. They if can rebuild them right where they are.- /th.e�eet code. The buildings are condemned by the Town Board., they have to come down in any event. Now, I told you I would talk about one other thing that had come up, this 50% thing. The Building Fire. Code, which we adapted by Chapted 45 of the NY Fire and Prevention Building Code, on remodeling, where they deal with the issue of remocbl.ing, provides in the one that I am reading from, which is Part, I might have to get it from Curt. Curt, do you have a direct reference on this? On the 50% , could you get it for me? I thought I had it right here , where they provide for remodeling of a building today, if you do more than 50%. of. its fair market value in more than a 6 month period, fair market value of the building when you start to remodel, and over a 6 month period, then you have to rebuild it according to. code, you can' t do what you want. You have to conform to the .existing fire and building code at the time , and that is in Part 1231 , which is of Chapter E of the NYS Uniform Fire Prevention & Building Code, which provides" . . ..that you have to conform . to the present code when an entire existing building is hereinafter. erected, When the cost of any alterations , additions or repairs in any 6 month period, exceed 50% of the cost of replacing the building, at the beginning of the 6 month period. " Also - they have a particular section,. 1231-4 " . . . whenever more than 25% of the roof covering 'of a building is replaced in any 6 month period, all roof covering on such building shall be made to comply with the current building codes. " Both apply in this case, because the roof is more than 25% shot. It would have to be replaced. So whatever they do there, it has to be according to the current standards , the current building code standards . So we have that covered in the con- struction element of it. So, the only question that has to be resolved and we feel it' s academic , but they do not and their other interpretations of the code are given by competent attorneys , that the .wording in 118 would apply and they would have to get a variance to rebuild them as they stand. So the building department backed off and took the view, we have made our determination, you people disagree with it. Under our code at ZBA 1/24/85 Page 18 OPEN DISCUSSION - Continued R. LARK: continued the current time, as emended, the ZBA can make a decision on that precise issue. It' s , in their view, relevant to them, because I . think it' s. next Tuesday, the Town Board date expires and the buildings have to be torn down and the Town Board has taken the view at the present time they are not going to ex- tend that time. It is my understanding that come following day or days they plan to go out to contract and tear the building down themselves and assess it, to the property owner , whoever that might be, Marine Associates , we feel, at this time and so be it. We don' t think that whether the building is up or down it makes any difference , but they .seem to think it gives them some vested rights . So, depending .upon whatever you people do or don'.t do at this point, will then dictate what they might decide to do; whether they will bring an injunctive relief in Supreme Court, to do whatever, because Town Board has said they are a hazard; they either have to be made safe. I think you should be made aware that after the building inspector told them what he deemed to have to be done to make safe, they costed it it out and apparently it' s some $35., 000 or $40 ,0.00 to have to be expended, just to make the building safe. That' s not an improvement or anything just to keep it safe, so outs.id.ers . can' t get in and the building doesn' t fall on somebody, or blow away on somebody. That type of thing. It' s an economic thing asfaras the developer is concerned. Curt, could you .give the Board just one or two generalized examples where the building department has passed on the narrow issue of where a building was non-conforming to. the current set- backs , as if you had .to go in. if it was vacant, and it was either torn down or destroyed by fire and then remodeled, restored or rebuilt, where the building department has granted a building .permit on proper application? MR. HORTON: I have seven or eight locations in my file and I will mention one which is one block away from the place. The place burned down over a year ago, they did get a building permit to rebuild the house , one. block _away from this . R. LARK: And the interpretation was since the use was valid, they did not have .to conform to the setback, if they built it exactly in the same spot? MR. HORTON: Absolutely. o ZBA 1/24/85 Page 19 OPEN DISCUSSION - Continued MR. HORTON : . I have more if. you care to. check the file. CHAIRMAN GOEHRINGER: Thank you, Mr . Horton. R. LARK: Is there anything else, any questions? I'f anybody does , I will be glad to answer them because it' s not moot or esoteric to them, it' s real to them, but . . . . . MR. DOUGLASS :I would just like to ask you a question, counselor. In determining a two year lapse of time , in other words , a use of a place, how much business do you .have to do to be con- sidered operational? R. LARK: That' s not defined statutorally and if they had a prior use of . a shipyard, marina, which is , as I understand, the overall operation was , they are able to substantiate in this particular case is 1983 , that they did use it. Now, they didn' t use it maybe 100% of what they used it for in 1980 or 1981 , or something like that, but the statute doesn' t define , there has .to be a certain percentage. . How would you measure that, .dollars? You are getting into some gray areas there. MR. DOUGLASS: I have not found anything in any of our stuff that says an amount of value that you have to do. R. .LARK: Amount of busines.s ,. you mean? MR. DOUGLASS : Right. This is .the reason I was bringing it up was because you have told us that they have shown operations . R. LARK: They are prepared to show proof Mkt. DOUGLASS : I personally know of operation in 1984 , but if a dollar value is put on it, it changes the picture. MR. LESSARD: No, no. R. LARK: I know of none. I know of none. That only becomes an issue if they let-their two year period go by and if the Board makes a determination, since a special exception was never . obtained, because they didn' t have to, but now they have to apply for one. We are not to that issue yet. The reason it came up is in the analysis of this non-conforming question you have to ask yourself, what is non-conforming in a shipyard, marina. And then when you start looking at the zoning ordinance and some of the predecessors that we have had in town, .it seems you have to get a special exception. We all know what the criteria for that is . If you don' t have it as a matter of right, you have it as a matter of Board of Appeals grace if you meet certain criteria.. . So, that would be the only portion of this. thing where you get into a non conformity. If they resought everything ZBA 1/24/85 Page 20 a OPEN DISCUSSION - Continued R. LARK: -- continued the way it was , or the way it should be. Now, talking with their planner , Mr . Raynor , when they finalize their whole plans , they fully intend to come for site plan approval with the Planning Board and special exception approval, because they are making some modifications , so they will come in for. the whole thing. But the problem if they do that where are they in relationship to the "footprint" of these 2 buildings on the southwest corner , is it, of the property? Can they rebuild on the same spot or do they have to move them up, because apparently if they have to move them too far back they have to reduce the. size of the building to carry the use .that they want to put to it and if they move them too far to the north, they interfere with some of their traffic patterns , so they are not sure exactly where they want to locate it. And they know they want to locate it probably closer to the, sideyard, than if it was .a vacant piece of property and they were to come in brand new to make application. It came up with interest at the building department after this question was raised, so let' s get an interpretation not only for this property but for any other property in the Town, so the building department can have guidance , since their determination had been challenged, that it might not be the correct one. Like an example like Mr. Horton gave, or the one I gave you with the residences , stuff like that. We don' t have that much guidance because a non-conforming structure is not defined in the code. Hopefully in the new amendments it will be and we won' t have this problem, but we do today. A lot of codes address themselves to the size of the yards , si.2e of the lot, so, thank you. CHAIRMAN GOEHRINGER: This is not a hearing, so I will not ask anything further from members of the audience. We will take everything under advisement and come up with . a decision in s i-�U Thank you all for coming in. ��:.. VTlT��J�DTT-pt� O1,II3q.��V SJ C V'.lG.._.. / A-5aCu �m Respectfully submitted, m . :1 Clerk, Town ca `- � Barbara Strang _ __..._ . . PP• 1 -20 (These minutes were transcribed from tapes as recorded in my presence)