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HomeMy WebLinkAboutZBA-07/27/2006 Hearing 1 2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS COUNTY OF SUFFOLK STATE OF NEW YORK f 3 4 --------------------------------------------X 5 T 0 W N O F S 0 U T H 0 L D 6 7 Z O N I N G B 0 A R D 0 F. A P P E A L S 8 9 - -------------------------------------------X Southold Town Hall 10 53095 Main Road Southold, New York 11 July 27, 2006 12 9 :30 a.m. 13 Board Members Present 14 RUTH OLIVA, Chairwoman 15 GERARD P. GOEHRINGER, Board Member 16 LESLIE KANES WEISMAN, Board Member 17 JAMES DINIZIO, Board Member 18 MICHAEL SIMON, Board Member 19 LINDA KOWALSKI, Board Secretary 20 KIERAN CORCORAN, Assistant Town Attorney 21 22 rOMINA-V 23 24 25 COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047 2 1 2 CHAIRWOMAN OLIVA: I ' d like to call the meeting to order of the regularly scheduled 3 meeting of the Zoning Board of Appeals of July 27, 2006, and I need a motion declaring all our 4 hearings have a negative declaration. CHAIRWOMAN OLIVA: Our first order is 5 Aliano, this is a work in progress, I think we will discuss this later. And Manos, I believe we 6 will discuss this also later. We have an inspection for the Fishers 7 Island Windswept properties and I believe at least three of us are going over and we will look at it . 8 BOARD MEMBER GOEHRINGER: On the 9th. BOARD SECY. KOWALSKI : August 9th on 9 Fishers Island, Windswept . CHAIRWOMAN OLIVA: Also a resolution to 10 withdraw the application of Ellen Wexler. (See minutes for resolution. ) 11 ------------------------------------------------- CHAIRWOMAN OLIVA: Our first hearing then 12 is Joseph Gonzales on Ole Jule Lane in Mattituck. Is there someone here who would like to speak to 13 this application? MR. GONZALES : I'm Joseph Gonzales . 14 CHAIRWOMAN OLIVA: Would you like to speak on your application, tell us what you want to do? 15 MR. GONZALES : What I 'm trying to do- is I want to close in the front part, where it' s 16 injected into the house. I'm trying to make a straight part, and I want to finish the garage 17 off, and this will be an entrance to the garage . BOARD MEMBER WEISMAN: Am I correct that 18 you' re moving the entry to your house to the side? MR. GONZALES : It' s on the side now, to 19 the front, I'm going to swing it around the other way. 20 BOARD MEMBER WEISMAN: Okay. BOARD MEMBER GOEHRINGER: In reading your 21 application, Mr. Gonzales, it' s my understanding that you are utilizing the existing footprint of 22 the house; there is no specific change except for a little jut out of a bay window where the garage 23 is? MR. GONZALES : It' s three and a half by 24 six feet, that' s the area. When they built the house -- I have a picture . 25 CHAIRWOMAN OLIVA: Sure . We love pictures . July 27, 2006 3 1 2 MR. GONZALES : (Handing. ) CHAIRWOMAN OLIVA: You' re just going to 3 fill this in? MR. GONZALES : Yes . I'm just going to 4 fill this in. BOARD MEMBER GOEHRINGER: Mr. Gonzales, 5 , can I ask one more question? On this bow window you' re putting in where the garage door was, how 6 far is that going to extend out into the front yard area? I realize it' s not foundation. 7 MR. GONZALES : It' s a window, yeah. I don' t know, just a regular size, maybe a foot . 8 BOARD MEMBER GOEHRINGER: Maybe you could discuss it- with either the builder or the person 9 you' re buying the window from so we could incorporate that into the decision. So you don' t 10 have a problem with that later. If we say in-place/in-kind, squaring off the foundation as 11 we would normally see it . This is referred to as a jut-out, we' d like to know what that is, I ' d 12 like to incorporate that into the decision. This is my decision, so I ' d like to know what that is . 13 Don' t have to tell us today. It' s a bow window where the garage door is being replaced by a bow 14 window, we just want to know how far that' s going to protrude into that front yard area. 15 BOARD SECY. KOWALSKI : Whether it' s eight inches or 18 inches . 16 CHAIRWOMAN OLIVA: Is there anyone here that would like to speak to this application? If 17 not, I' ll make a motion to close the hearing and reserve decision until later. 18 (See minutes for resolution. ) --------------------------------------- ---------- 19 CHAIRWOMAN OLIVA: Next application is for Scott and Wendy Albrecht, Main Road in Laurel for 20 an in-ground swimming pool in the front ._ Is there anyone here to speak on this? 21 MR. ALBRECHT: Good morning, I just wanted to point out, the reason for .the placement is six 22 feet into the side yard was I had a grade problem where I wanted to find the most level piece of 23 ground, and we also had some mature trees that would also shade that pool, and that' s kind of the 24 reason for the placement . CHAIRWOMAN OLIVA: You' re really hidden 25 back there . MR. ALBRECHT: Is there any questions that July 27, 2006 4 1 2 you would have for me? BOARD MEMBER WEISMAN: No . It' s pretty 3 straightforward, we saw it in .the ground. CHAIRWOMAN OLIVA: Now we know where that 4 little road goes to . BOARD MEMBER WEISMAN: You have no 5 neighbors that have any impact . CHAIRWOMAN OLIVA: Jim? 6 BOARD MEMBER DINIZIO: No . CHAIRWOMAN OLIVA: Jerry? 7 BOARD MEMBER GOEHRINGER: No, no problems . CHAIRWOMAN OLIVA: Michael? 8 BOARD MEMBER SIMON: No. CHAIRWOMAN OLIVA: Is there anyone else 9 who would like to comment on this application? If not, I ' ll make a motion to close the hearing and 10 reserve decision until later. (See minutes for resolution. ) 11 ------------------------------------------------- CHAIRWOMAN OLIVA: Off the record. 12 (At which time off-the-record deliberations were held. ) 13 CHAIRWOMAN OLIVA: Back on the record. Next application is for John Mazur on Camp Mineola 14 Road in Mattituck. MS . MARTIN: Good morning, Amy Martin, •15 Fairweather-Brown Design, representing Jack and Alice Mazur. As you have the application before 16 you, we wish to add a two-car garage and a mud room extension to the side of this property which 17 by map shows it as having three front yards . It has come to my attention that the Allen Drive 18 side, which is the west side of this property, the road actually was denied -- it' s not allowed to be 19 called a road by the town. They denied someone using it as an access to the property behind 20 theirs because it' s 30 feet wide rather than 50 feet wide . Basically as you have the things 21 before you, we have one section of the house that didn' t have a preexisting CO, a prior owner had 22 closed in an existing porch and boxed out the building there, and we' re trying to put a second 23 story addition that is recessed from the existing building but still does -not meet the setbacks from 24 the Fay Court road, which is actually not a road either. So the asphalt stops half-way through the 25 property and also the setback from that court is very consistent or less than the house to the July 27, 2006 5 1 2 east . So we ask that this be given consideration 3 as in a normal property, what we' re asking for would be a side yard setback for the garage and 4 mud room, and we have -- the dimensions would be at the closest point 15' 6" from that side yard, 5 which is really a walk-through path or a LIPA easement at this point . Then the proposed second 6 story dormers that would not be 20 ' 11" from the property but end up actually -- 7 BOARD MEMBER WEISMAN: 20 . 9? MS . MARTIN: Actually 27 ' 11" to the dormer 8 from the property line . CHAIRWOMAN OLIVA: 20 . 11 . 9 MS . MARTIN: The 20 ' 11" is to the existing part of the building that was boxed out prior to 10 this ownership, and the second story is 27111" from the property line, and we' re asking for 11 relief from both of these determinations . CHAIRWOMAN OLIVA: You' re not rebuilding 12 the first floor, that' s going to be existing? MS . MARTIN: No, there will be interior 13 changes, it' s a total interior renovation. They' re not rebuilding the first floor, the only 14 addition to the first floor is a covered walkway in the front and the garage room and mud room and 15 a mechanical room, which is part of the mud room. BOARD MEMBER WEISMAN: You' re also 16 requesting an increase in lot coverage to 21 percent; is that correct? 17 MS . MARTIN: Yes . BOARD MEMBER WEISMAN: So in addition to 18 setbacks there' s a lot coverage increase? MS . MARTIN: Yes . 19 CHAIRWOMAN OLIVA: What renovations are you going to make to that first floor? 2-0 MS . MARTIN: The house is very chopped up -- 21 CHAIRWOMAN OLIVA: Basically interior? MS . MARTIN: Interior. 22 CHAIRWOMAN OLIVA: You' re not going to change the outside? 23 MS . MARTIN: They' re going to re-side it . BOARD SECY. KOWALSKI : All nonstructural? 24 MS . MARTIN: ,. All nonstructural . BOARD MEMBER DINIZIO: You' re going to 25 sister the boards; 'are you going to take these boards, the two by fours the house is built on now July 27, 2006 6. l 2 and put two by sixes? MS . MARTIN: I believe structurally it 3 will be made more sound from the inside . I don' t know that full discovery has been made . I do know 4 that the foundation is adequate . BOARD MEMBER SIMON: I notice on the 5 description the lot coverage area it says 20 . 124 percent,' which� is not 21 percent . 6 MS . MARTIN: Somehow in translation it ended up 21 percent, it' s just so that if there' s 7 any minor infraction on an inch here or there, we don' t end up in problems. 8 BOARD SECY. KOWALSKI : 21 would be the maximum. 9 BOARD MEMBER SIMON: Generous . MS . MARTIN: Yes . 10 CHAIRWOMAN OLIVA: Jerry? BOARD MEMBER GOEHRINGER: Mrs . Martin, you 11 indicated the garage on the plan is one story, however, when you look at the elevation page we 12 notice there' s a dog house, actually, there' s a reverse gable placed in the garage, which means 13 there will be an upstairs; what will be the utilization? 14 MS . MARTIN: Just storage . It will have a pull-down staircase . 15 BOARD MEMBER GOEHRINGER: For the Board' s edification, this is an area where most of these 16 houses do not have basements; is that correct? MS . MARTIN: No, it can' t . It' s on a 17 flood plain, and it' s on a slab. The flood plain is elevation eight and the house property is at 18 elevation 10 ,, so there are no flood plain issues . 19 BOARD MEMBER SIMON: Is Fay Court not a proper road? 20 MS . MARTIN: Allen Drive . BOARD MEMBER WEISMAN: Fay is- like a lane 21 that dead ends . CHAIRWOMAN OLIVA: Jim? . 22 MS . MARTIN: I have some photos here alluding to the similar setbacks from surrounding 23 properties and further explaining, but if anyone was to the site, you know well that the houses 24 that are going in there are considerably larger than what we' re asking to do. 25 BOARD MEMBER DINIZIO : I'm .wondering, are you going to comeback later with a swimming pool? July 27, 2006 7 1 2 MS . MARTIN: I don' t believe so . BOARD MEMBER WEISMAN: They wouldn' t get 3 it with the lot coverage . BOARD MEMBER GOEHRINGER: Hard to put in, 4 the house is right in the middle of the property. 5 MS . MARTIN: Also with the groundwater and the flood plain, I don' t think that' s something 6 they would ask for. BOARD MEMBER DINIZIO: You said the garage 7 doesn' t have any stairs to it? MS . MARTIN: To the best of my knowledge, 8 no, it' s meant to have a pull-down staircase for storage . I don' t have the full plans with me to 9 verify. BOARD MEMBER DINIZIO: You wouldn' t be 10 able to from the upstairs walk to it? MS . MARTIN: There isn' t enough room to 11 have accessory living quarters . CHAIRWOMAN OLIVA: You' re just going to 12 have electric in there? MS . MARTIN: Yes . . 13 CHAIRWOMAN OLIVA: No water? MS . MARTIN: No, because the mud room is 14 right next to it and that will maybe have a washer/dryer in it, and the mechanical room is in 15 there because there is no basement, they needed an area to put in a boiler. 16 BOARD MEMBER WEISMAN: And the height to the ridge consistently is 27 feet? 17 MS . MARTIN: Yes . CHAIRWOMAN OLIVA: Anybody else have 18 anything? If not, I'll make a motion to close the hearing and reserve decision until later. 19 (See minutes for resolution. ) ---------------------------------------- - -------- 20 CHAIRWOMAN OLIVA: Next hearing is for Jennifer Gould, Truman' s Path in East Marion, who 21 wishes to put an addition on the house . Mr. Bressler, good to see you again. .22 MR. BRESSLER: And you and all the members of the Board on this nice morning. We' re here on 23 Jennifer Gould' s matter. I will assume the Board' s usual familiarity with the facts and 24 circumstances of this particular application. To say that this is a diminimus application I think 25 actually overstates the case . This is a classic application involving one of the myriad of small July 27 , 2006 8 1 ' 2 lots that dot the north fork, and in particular, in Jennifer' s neighborhood, the Board I 'm sure is 3 not unfamiliar with the neighborhood having been through one of these with the neighbor. 4 What we' re seeking is substantially less than what the Board approved over there . We' re 5 not playing games with new foundations, we' re not tearing down houses, we' re not building new 6 houses, we' re not moving things one foot or two foot to one side or another. All we' re doing is 7 adding a very, very modest extension involving 115 square feet or 1 . 56 percent . I think that the 8 Board can see looking at the nature of the lot, 40 feet at its widest, that there are no real 9 alternatives if there is to be any relief at all . It certainly is not going to be out of keeping 10 with the character of the neighborhood, and it is a very modest proposal, 115 square feet and we 11 think that on the facts and circumstances and applying the balancing test that the equities 12 plainly favor Miss Gould and that she should be permitted to make this modest improvement to her 13 property. I ' ll leave it at this that because I know 14 the Board has read the papers and if there are any questions, I ' d be happy to field them. If there 15 is anything I can' t handle, Miss Gould is here and she can field them. 16 BOARD MEMBER SIMON: I have a question about the setbacks, according to the notice of 17 disapproval, it notes a five foot single yard setback and the plan calls for a six foot . I 18 could not figure out from looking at the property where it was ever five feet . It makes it look as 19 though this project will increase the setback. I wasn' t clear whether that' s necessary or important 20 or true . MR. BRESSLER: Well, we would certainly 21 like to believe it' s true and we' d like to increase the setbacks however as to that -- 22 MS . GOULD: Mr. Simon, at the front of the house, which is the bay side, it' s five feet but 23 as you go back it' s six feet and that' s where the addition is, is the back. 24 MR. BRESSLER: So it' s true to a certain extent depending on where you measure it , and I 25 think that taking that into account weighs in favor of our application. July 27, 2006 9 1 2 BOARD MEMBER GOEHRINGER: Mr. Bressler, I 'm not interjecting the past hearing, ' but this is 3 a hypothesis or a request of a hypothesis, it' s my understanding that the existing garage is not a 4 garage-, will that be reconverted back into a garage or will there be another application 5 sometime in the future for another garage if this is incorporated into the house? And that' s the 6 issue . MR. BRESSLER: It is not to be 7 incorporated into the house . I think the Board can see from the plans that it does not call for 8 an actual physician joining of the properties . It does not constitute a separate dwelling unit, and 9 there are no current plans at this time for yet another structure on the property, and I dare say 10 given the configuration of the property, I 'm not sure the Board would be amenable to yet another 11 structure . . I think that' s the answer to the question. 12 BOARD MEMBER GOEHRINGER: Thank you. CHAIRWOMAN OLIVA: Leslie? 13 BOARD MEMBER WEISMAN: We' re provided with elevations and a site plan but no floor plans so 14 the new proposed pergola and roof piece, can you simply explain the intended use for that interior? 15 MS . GOULD : Basically the reason that I am requesting the variance is I would like to 16 reconfigure the downstairs, the back downstairs of my house . My husband is 76 years old this week 17 and he' s had five let procedures in the last 15 years, the most recent two months ago, and I think 18 it would be prudent -- and I thought it before his last deal -- to have a bedroom that was livable on 19 the first floor. There is a bedroom there now that my son used, my son is now out of the house, 20 but it wasn' t big enough for him, so it' s not big enough for the two of us . This is the only way 21 we could do it . The idea is that the bedroom would but up to the garage, then next to the 22 bedroom would be a new bathroom, a hallway where I could have the washer/dryer in a closet in the 23 hallway. Right now when you open my back door, I have a stack washer/dryer that sticks four inches 24 into the doorway, it' s not very gracious . Then I want to make what was my son' s room the kitchen, 25 knock down the wall of the stairway is exposed, the stairway goes up between the kitchen and his July 27, 2006 10 1 2 room, and make what' s now the kitchen a place for a dining room table because right now my dining 3 room table is in the living room, because I only have an eat-in` kitchen. We have a very, very 4 small house, two little bedrooms upstairs . This is the minimum we could do, as you can see, I ' m 5 not proposing to fill in the whole amount of space between the garage and the house because, frankly, 6 it didn' t look nice to me . We did look at a plan like that . I like the idea of having it half 7 open, and they' re going to do clapboard instead of shingles to make it look different, and paint it 8 white and there will be a real entryway rather than -- what we have now is you walk in the back 9 door and you see a lot of coats because it' s a back entry, it' s an old summer cottage . 10 BOARD MEMBER WEISMAN: I presume you have floor plans for these? 11 MS . GOULD: Here' s the plans, if you would like . 12 BOARD MEMBER WEISMAN: Yes, I ' d like to see them. Sometimes it' s clear to see what that 13 connecting piece is . Obviously you' re discussing interior renovations that will reorganize the 14 rooms and their relationship to sizes and so on. So that' s a substantial interior renovation that 15 requires a fairly modest exterior connecting piece and that will increase the lot coverage by what? 16 MR. . BRESSLER: 1 . 56 percent . BOARD MEMBER DINIZIO: They will still be 17 under. BOARD MEMBER WEISMAN: This is the demo 18 plan. So this new staircase? MS . GOULD: No, same staircase . 19 BOARD MEMBER WEISMAN: That' s an existing staircase that' s going up to your second story in 20 your existing house? MS . GOULD : Correct . 21 BOARD MEMBER WEISMAN: Really that' s the only plan that we need. 22 BOARD MEMBER DINIZIO: So it looks like this is the bedroom. 23 BOARD MEMBER WEISMAN: Yes, it makes perfectly good sense . The plans are very clear 24 about what you' re adding on. They don' t draw in walls and existing, they' re not really showing 25 specifically what' s to be demolished. There' s no demo in the existing first floor? July 27, 2006 11 1 ' 2 MS . GOULD : You have to demo that bathroom, you take the walls out and just continue 3 straight out, and a new bearing wall . I think that' s all in the plans . 4 BOARD MEMBER WEISMAN: It' s fine . Thank you, it' s much clearer. 5 CHAIRWOMAN OLIVA: Is there anyone else that wishes to speak? 6 BOARD MEMBER DINIZIO: I have to write this decision, and I hope you don' t hold me to 7 plagiarism, it may look familiar if I write it . The 18 . 33 is the total lot coverage after 8 everything is done, right? MR. BRESSLER: Yes . 9 BOARD MEMBER DINIZIO : I had a question on the side yard, the six feet, is just because the 10 angle of the lot . MR. BRESSLER: Correct . 1.1 BOARD MEMBER DINIZIO : The garage that exists now you' re going to adjoin to, is there 12 going to be. a door between that house? MR. BRESSLER: No. 13 BOARD MEMBER DINIZIO: You' re going to have to go outside the house to get to that part 14 of the house? MR. BRESSLER: No physical connection. 15 MS . COULD: There' s going to be a new door' cut into the garage . 16 BOARD MEMBER DINIZIO: I saw that, but there' s not going to be anything going between the 17 bedroom and -- MS . GOULD: That will be where the bed is 18 and I don' t want a door there . BOARD MEMBER DINIZIO: The porch either, 19 the porch on the east side? MS . GOULD : No. 20 BOARD MEMBER DINIZIO : That' s all I have, go home and don' t sue me . It might look exactly 21 the same . CHAIRWOMAN OLIVA: Is there anyone else 22 that wishes to. speak on this application? Mr . Arnoff . 23 MR. ARNOFF: Good morning, I'm Harvey Arnoff, I represent the Bollmans who live next 24 door. Before I start, the documents that were in your file were unclear because it was indicated to 25 me that the addition was connected to the accessory structure . Could I see the floor plan July 27, 2006 12 1 2 that indicates something to the contrary? BOARD MEMBER DINIZIO : It is connected, 3 physically. MR. ARNOFF: It' s not a separate building? 4 BOARD MEMBER DINIZIO: It' s going to be one building on that piece of property. 5 MR. ARNOFF: If that' s the case, I think the Board has to ask itself a question, we' re 6 talking about playing games, are we going to reward someone' s wrongdoing? Because in this 7 instance, this garage hasn' t been a garage in foreseeable memory. It is a habitable structure 8 in which Mrs . Gould' s son resides when he is in residence there and has been seen living there . 9 Upon information and belief there' s a bathroom in it . And what this is not merely expansion of 100 10 feet of living space, what you have here eventually, whether we want to face this today or 11 face it at another time is this whole structure is going to be expanded into one living quarters . 12 It' s never going to be a garage, and it' s never going to be an accessory structure . It hasn' t 13 been as long as the Bollman' s can recall and I don' t see it foreseeably being that way in the 14 near future, nor do I see a methodology where this Board can control that because no one' s going out 15 to inspect and no one' s filing complaints . There are alternatives . In the application they say 16 there are alternatives to what they' re doing, but they' re choosing not to do it because they don' t 17 like the way it looks so they could avoid coming before this Board. You have to remember, and this 18 is something that has always stuck in my craw, the word "variance" is not something that one gets as 19 of right . If it was something one gets as of right, you don' t have to be here . So it' s a 20 discretionary act by each one of you as to whether we' re going to reward Mrs . Gould for what has gone- 21 on in the past . Are we going to allow what has been an ongoing violation to now be given the. , 22 imprimatur of this Board, and say okay, we' re going' to allow you to connect it, but we' ll 23 believe you that this structure is not going to be habitable, it' s not going to be used for anyone to 24 sleep in, live in or anything else, yet that' s not what' s happened. 25 My clients are concerned about that, and I think that this application is something where July 27, 2006 13 1 2 this Board should take a hard look at exactly how to balance the equities and do. you really want to 3 allow this based upon past history. You can consider any extrinsic evidence you want in 4 determining whether you want to approve an application. There are alternatives . This 5 difficulty is self-created. She can live in the house the way it is . There' s no necessity for 6 this . She just doesn' t want it and wants to change it in some manner that makes it more 7 acceptable to her current use desirability. That' s good, that' s a reason but I don' t know if 8 it ' s a good enough reason. I submit that this Board should deny this application. Thank you. 9 CHAIRWOMAN OLIVA: Mr. Bressler? MR. BRESSLER: Thank you very much. I 10 listened with great interest to Mr. Arnoff' s comments; they don' t seem germane to this 11 application here . The application speaks for itself . I think good reasons have been given and 12 I think the balance of equities plainly favors Miss Gould. 13 However, I cannot let pass some of the statements that were made and neither can Miss 14 Gould. They are just untrue . I ' m torn between dignifying them, when I know that they should not 15 be because they' re not germane to the issues before the Board. Yet when an accusation like 16 that is made, it calls for some sort of response, we' ll keep it brief . There are no habitable 17 quarters, no cooking facilities there . It' s not like the project next door. You already heard 18 where the son lives or lived before he moved out . I 'm going to have Miss Gould briefly. 19 address these things, and then we' ll let it rest with the sound discretion of the Board and let the 20 merits of the project speak for themselves.. Miss Gould, do you want to address very 21 briefly? MS . GOULD: My son has never lived in the 22 garage, ever, not a night . The reason that we want not to connect this bedroom with the garage 23 and -- it' s not a garage, we don' t keep a car in it . We never have . For 20 years we've used it 24 for storage, okay. We have a golden retriever, I ' m surprised the Bollmans do not know this, 25 either Jack or I walk this dog every morning. And when we come back from the walk, the dog goes into July 27, 2006 14 1 2 the garage for her morning nap., which lasts until 1 : 00 or 2 : 00 when he comes back from doing his 3 volunteer work. So every day the dog, Penny, is in the garage in a dog bed. You can go look at my 4 garage at any time . There isn' t a bed in there . There was a bed stored there in an upright 5 position, that bed is now in the house .. But that dog uses the garage . No one has ever lived in the 6 garage . I don' t know what else to say. BOARD MEMBER GOEHRINGER: Mrs . Gould, does 7 the garage have a cement floor or a wood floor? MS . GOULD : It has a cement floor. It has 8 a subfloor over it, wood floor over it . BOARD MEMBER DINIZIO: Can I ask a 9 question, when I 'm reading the application, I am looking at probably your footprint, the footprint 10 that exists and the footprint that will be, that you' re asking us to grant . As far as I can tell, 11 once we grant that, that garage becomes part of the principal structure . 12 BOARD MEMBER WEISMAN: Exactly. BOARD MEMBER DINIZIO: And I have no 13 objection to that whatsoever. I . am assuming that' s what we' re considering here . Regardless of 14 whether you have a door between the bedroom and the garage doesn' t make it, in my opinion -- and I 15 want to know if this is how you felt about it -- a garage . It' s actually going to become part of 16 that principal structure, and I don' t know about anybody else but I never considered that . 17 MS . GOULD: It' s still an accessory building. 18 BOARD MEMBER DINIZIO: Once it' s joined, the garage, it' s attached. 19 MS . GOULD: It has its own wall butting up to it, but if you can' t get through what do you 20 want me to do, have a one inch space? BOARD MEMBER DINIZIO : I ' m not opposed to 21 the application, I 'm merely stating -- MR. BRESSLER: I think what we have to 22 make clear here, the addition is going to have its own separate walls . We' re not going to use the 23 wall of the garage as the wall of the house . To the extent that they may be abutting, well, 24 they' re abutting. But to say that it' s a part of it, I think we can parse this too finely. That 25 building' s there and we' re adding on and it' s going to have its own walls, and there' s no door July 27 , 2006 15 1 2 between them, and I think, Mr. Dinizio, you' re right . It is what it is, and I don' t think that 3 affects the nature of the application. I don' t think it' s going to change the lot coverage . It' s 4 not going to change the rationale for why this addition needs to be built . I don' t think that we 5 need instead of butting them up, I don' t think we need to leave an inch in there . I think it ' s a 6 matter of interest that the Board can ask that question, but I don' t know that it' s really 7 determinative of an issue . BOARD MEMBER DINIZIO : . I want to be clear 8 on that, Eric, quite honestly, what you' re applying for is to make the house the size of the 9 footprint you' re going to create . BOARD MEMBER WEISMAN: The house will all 10 be heated, habitable space . Whether you have an exterior connection is not a point, there will be 11 no accessory structure on the property. BOARD MEMBER DINIZIO : You can park your 12 car in there if you want, that doesn' t make a difference to this board, in my opinion. If you 13 want to put a car in there, it' s like an attached garage as far as I 'm concerned, but as far as the 14 setbacks are concerned, which is a concern to us and lot coverage, it' s all going to be basically 15 one piece, one building that' s going to be on that lot . 16 MR. BRESSLER: I don' t know that that makes a difference' whether the Board characterizes 17 that way or not, the spaces are what they are . It' s not habitable space, the dog' s going to keep 18 living there . CHAIRWOMAN OLIVA: Is the garage heated in 19. any way? MS . GOULD: It has one heat panel because 20 the garage is in there, it has . an electric panel . BOARD MEMBER SIMON: I have a question 21 for Mr. Arnoff . You referred to the reward for a violation. 22 MR. ARNOFF: Yes . BOARD MEMBER SIMON: I don' t understand 23 what the violation is; has it been identified as a violation? 24 MR. ARNOFF: Well sure, the violation is the utilization of an accessory structure, which 25 is a garage for habitable space . BOARD MEMBER DINIZIO: Who made that July 27, 2006 16 1 2 determination though? MR. ARNOFF: There has been no 3 determination of that, that' s correct, there' s been no adjudication of that . I 'm merely making 4 that statement . BOARD MEMBER DINIZIO: That' s your 5 opinion. BOARD MEMBER SIMON: It' s an allegation. 6 MR. ARNOFF: That' s correct that ' s what it is, sir. 7 BOARD MEMBER DINIZIO: It' s not a violation. 8 BOARD MEMBER WEISMAN: It' s an allegation. MR. ARNOFF : It may be a violation. The 9 fact that it' s not been prosecuted by anyone in this municipality is another issue . 10 BOARD MEMBER SIMON: Has an allegation been filed? 11 MR. ARNOFF: No. BOARD MEMBER SIMON: We can make an 12 allegation that you have four people living in your garage, that has no legal standing. 13 MR. ARNOFF : Factually, if someone chooses not to file a criminal charge or file formal 14 charges -- if five people go down the road at 100 miles per hour, sir, they' re still speeding, 15 whether or not a police officer arrests them, they' re violating the law. 16 BOARD MEMBER SIMON: If the allegation is established. I mean, allegations are cheap, 17 charges are not . MR. ARNOFF: If this Board is prepared, we 18 can bring in witnesses . BOARD MEMBER DINIZIO : . Honestly, that' s 19 not our purview. MR. ARNOFF: That' s correct . You' re right 20 that' s why they're not here . One of the things you' re correct about is this application is for 21 the conversion of an accessory structure to the part of the main habitable space of this house . 22 The issues are then is that something this Board wants to address also because then are we not 23 considering the entire -- CHAIRWOMAN OLIVA: Harvey, that' s not part 24 of the application. MR. ARNOFF : But in reality isn' t that 25 what the Board' s saying is happening here because as Mr. Dinizio said correctly, you are not going July 27, 2006 17 1 2 to end up with an accessory structure . You are converting an accessory structure and making it 3 part of the main house . Mr. Goehringer says it' s not a garage; we all recognize it ain' t a garage; 4 it hasn' t been a garage in 20 years . What it is is questionable . It' s heated, it has a bathroom, 5 it doesn' t sound like a storage to me, it' s like if it walks like a duck and quacks like a duck, 6 it ' s a duck. CHAIRWOMAN OLIVA: Mr. Arnoff, who has 7 been in there to see it that you can document this? And it' s not part of the application. 8 BOARD MEMBER DINIZIO: I am looking at the survey right now with all the new structure on it, 9 and whether or not it' s an accessory structure doesn' t make a difference because nowhere except 10 for the six foot setback that the front yard setback still meets principal . So even if it ' s 11 joined, it still can be a principal structure . So nothing to my mind that I would say this is an 12 accessory structure, once it' s joined, it' s principal . There could be a bedroom in there, 13 whatever they want they can have .at the end of this . 14 MR. ARNOFF: Then it' s habitable space? BOARD .MEMBER WEISMAN: That' s why I asked 15 to look at the floor plan. BOARD MEMBER DINIZIO: And the cloudy 16 thing was it wasn' t like you could walk from the kitchen to this part of the house . 17 MR. BRESSLER: I just have one other point and that is, Ms . Gould has indicated if there' s 18 some indication on the part of the Board about this application and some issue about connecting 19 these things, even though they have their own separate walls, they don' t have to be . 20 BOARD MEMBER DINIZIO: I don' t think so . I just wanted to be clear I have a little question 21 about the aging part . Aging owners of my property -- 22 MS . GOULD : My husband, Jack. MR. BRESSLER: Certainly no one in this 23 room. BOARD SECY. KOWALSKI : We have something 24 procedural to mention. CHAIRWOMAN OLIVA: If you convert that 25 garage to habitable space then you would have to come back to us for a variance as a separate July 27, 2006 18 1 2 application. MR. BRESSLER: Of course . Whether it be 3 an attic or whatever to convert nonhabitable to habitable we' d have to come back and meet all the 4 requirements, and we have no intention of doing that . We think putting a dog in there does not 5 rise to the level of habitable space, but I guess people can argue about that . So we take your 6 comment and if we intend to convert it, we' ll make the application, and I guess we' ll be back in 7 front of you. MR. ARNOFF : I think you said what I was 8 trying to say, Miss Oliva, that is, this application if it' s approved is doing just that 9 without them coming back to you, it' s converting nonhabitable space by indirection to habitable 10 space . Mr. Dinizio says it' s all one, it' s all part of the same structure, it can' t be an 11 accessory structure if it' s part of the main structure . 12 CHAIRWOMAN OLIVA: But you have two separate walls . 13 MR. ARNOFF : The buildings are connected, they' re one, it takes nothing to create a door, 14 and the whole essence of this application I submit -- and by the way it may be something that 15 this Board wishes to embrace and that' s fine, and that' s something we can deal with -- but the issue 16 is let' s call it what it is, it' s the conversion of this structure from a detached structure to a 17 attached structure . It' s part of the house . I think that' s the correct analysis, if it ' s part of 18 the house then they belong back here for an application to convert the accessory structure to 19 habitable space . BOARD MEMBER DINIZIO: No, the moment they 20 make that attachment, that' s what it becomes . It has to meet all the building codes, sheet rock, 21 ceiling heights all that has to happen. MR. ARNOFF : Just I disagree . 22 BOARD MEMBER WEISMAN: Just the roof alone will constitute the elimination of the accessory 23 structure . MR. ARNOFF : It is . 24 BOARD MEMBER WEISMAN: It won' t be . BOARD MEMBER SIMON: I think there' s an 25 issue of principal here . If you have an accessory structure, which is quite close to the principal July 27, 2006 19 1 2 structure and one could imagine subrosa building activity to convert that, that would be a 3 violation and it could be brought to the Board. Now the fact that there seems to be a possibility 4 of that in this case because these are two walls which could illegally be penetrated by a door, is 5 not the grounds for turning down the application. MR. ARNOFF: I don' t think it should be 6 turned down based on that . I don' t think that' s the issue . I think the issue is the application 7 should be expanded to include this . I think the Board should mandate that . Is the neighbor 8 supposed to police and see if they ever poke a hole through the wall? How would anyone ever 9 know? This is an invitation to disaster. The word "disaster"' is far more dramatic, that came to 10 mind and I just used it, but the realities are that you people should address this as part of the 11 application and to do otherwise I think is to not face the realities of the application. 12 BOARD MEMBER WEISMAN: Is there anywhere in code that suggests that an interior connection 13 on one structure is essential or not? MR. ARNOFF : I 've never seen that in any code . 14 BOARD MEMBER WEISMAN: There is nothing that mandates an organization of a plan that says 15 one must have every room connected. MR. ARNOFF : Absolutely not . 16 BOARD MEMBER WEISMAN: Well, in a sense it doesn' t matter whether it' s connected or not 17 connected as long as it has a continuous roof . MR. ARNOFF : It does because it ceases to 18 to be an accessory structure . The reason we have to address it is because it has now changed from 19 something that it was, an accessory structure that had certain requirements, to something now that 20 has to meet other requirements . BOARD MEMBER DINIZIO: No, that' s the 21 point here, the point is, they are not doing anything at all until they run into this Walz 22 decision. MR. ARNOFF: I don' t know what you mean by 23 that . BOARD MEMBER DINIZIO: Five years ago this 24 application wouldn' t even be before us and I'm saying that because the accessory structure meets 25 the principal front yard setback, so that would not -- if it were say be an accessory setback July 27, 2006 20 1 2 front yard, three feet or whatever it would have to be, then, yeah, they' d be before us, they' re 3 not increasing any of the four dimensions that the code dealt with before Walz . They' re not going 4 any. closer to the property line on the side . They' re maintaining that six foot distance; 5 they' re not going any higher than 35 feet, they' re .not increasing the front yard setback and they' re 6 not increasing the rear yard setback, and they' re not increasing the total side yards . 7 BOARD MEMBER WEISMAN: Nor the lot coverage . 8 BOARD MEMBER DINIZIO : So all of that means they wouldn' t be before us until Walz came 9 in. Now the Walz decision, I respect it even though I don' t like it, but in this case, the Walz 10 decision says that they' re increasing the bulk of this home -- and I can tell you I 'm not sure if 11 it ' s written down by the building inspector, but there is a certain distance that accessory 12 structure must be away from a principal structure, I believe it has to do with fire codes . 13 BOARD MEMBER GOEHRINGER: Three feet at least . 14 BOARD MEMBER DINIZIO: I don' t know what it is, but it is something this will not meet that 15 requirement in any way. Even if they' re abutting, if you could put your hand in between, they' re 16 essentially joined by building codes . So it' s part and parcel of an accessory structure, is just 17 a building at this point, just a bunch of wood, the moment they join to the principal structure, 18 it becomes part of the principal structure . Again, maybe the window sizes don' t meet the state 19 code or the door sizes don' t meet the state codes the step sizes, certainly that' s not this Board' s 20 purview, but certainly the building inspector will want to address that . They' re not going to be 21 back before us because they want to put a bedroom in that particular part of, the house . We have 22 nothing to do with it . We' re addressing those four dimensions . As I read the application, I 23 didn' t read that we were going to end up with an accessory structure and a principal structure on 24 this piece of property. I read that we' re going to have one principal structure . 25 MR. ARNOFF : That' s how I read it . BOARD MEMBER DINIZIO: I want to be clear July 27, 2006 21 1 2 on that . I really have no objection to the fact of what they' re doing, and they' re really not 3 increasing much of it other than filling in the space . That' s all I have . 4 BOARD MEMBER WEISMAN: That' s all I have . CHAIRWOMAN OLIVA: Is there anyone else 5 who would like to comment on this application? If not, I ' ll make a motion to close the hearing and 6 reserve decision until later. (See minutes for resolution. ) 7 ------------------------------------------------- CHAIRWOMAN OLIVA: Next hearing is for 8 Barbara Thermos on Sound Beach Drive, Mattituck. Good morning, how are you today? 9 MS . THERMOS : Good morning. If I may give Linda. Well, we' re requesting to build a 10 three-story home and it states that the code limitation is two and a half stories . That' s 11 basically it . - BOARD MEMBER GOEHRINGER: What makes it 12 three stories? MS . THERMOS : Where the home is located 13 and we' re unable to go beneath, so I guess it will be our garage and two floors' of living space . 14 BOARD MEMBER GOEHRINGER: What will be in the garage? 15 MS . THERMOS : A car, my kids' toys . BOARD MEMBER GOEHRINGER: Will there be 16 anything in the lower quarters of the house; will there be an exercise room or anything that will 17 constitute a living quarters or a use that will be construed to be a living quarters? 18 MS . THERMOS : No. BOARD MEMBER GOEHRINGER: So in the back 19 of the garage we' re going to see a vacant space that you will use for storage? 20 MS . THERMOS : Yes . There will be a elevator like the tools -- like the room for that 21 area and that' s it . BOARD MEMBER GOEHRINGER: What do you mean 22 by an elevator? MS . THERMOS : I have my elderly parents . 23 BOARD MEMBER GOEHRINGER: You' re going to put something in there for them to get to the 24 first and second story. BOARD MEMBER WEISMAN: That was already 25 there in the original plans when you sought side yards setbacks in January. I remember the plans, July 27, 2006 i 22 1 2 I checked them in fact, because you have now only submitted elevations . I went back to my original 3 set of plans, you not only have an elevator, but what I want to know, you have not increased the 4 ridge or the median height . MS . THERMOS : No, it was my mistake . 5 BOARD MEMBER WEISMAN: You should have applied then. 6 MS . THERMOS : It was my error, I didn' t know how to fill out the application, obviously, 7 and I made a huge error. And delayed us this entire time . I would have done it then, because 8 you and I actually discussed that . You said you' re not exceeding, and I said no, I just ,didn' t 9 know, it was stupidity. I had no clue, we' re not exceeding the height . I just didn' t realize that 10 that was an issue, three stories instead of two and a half . 11 CHAIRWOMAN OLIVA: Why did you decide to go to three stories? 12 MS . THERMOS : Just for living space . We' re going to eventually move out here . I have 13 three children. I did want a basement . We can' t have a basement . I needed storage, I wanted to 14 have the garages . They' re huge . We have three children, it' s my husband and I , my parents . 15 There' s a lots of storage and there' s the bedrooms and then. 16 BOARD MEMBER SIMON: On one hand it looks as though because of the physical situation in the 17 ground that the basement, must be the first floor, however, not everything on that floor is basement, 18 for example, the garage is there' s a first floor activity. And I was looking at in comparison to 19 other houses, and they all have the similar problem, this would be the only three-story house 20 on Soundview Drive, and one looks 'at some of the other buildings are either two stories, some are 21 two and a half stories, none are three stories . MS . THERMOS : You also, if 'I may, take 22 into consideration that aside from my home and maybe two others on that block everyone' s 23 basically stayed in the original homes that they were built in. No one has really done much 24 renovations . There' s a lot of elderly people who live there that have no intentions of modernizing 25 the homes, maybe have no need for it . BOARD MEMBER SIMON: If the people who are ,July 27, 2006 23 1 2 living in more of those modest houses now do not intend to do so, presumably a successor owner will 3 be able to point to you didn' t your house as a precedent allowing three story houses . Maybe 4 yours will be the only one for a year or two . So there is a policy issue that' s involved there . It 5 will be very difficult for us to turn down the next application because of the precedent, that 6 we' re asked to set on this case . MS . THERMOS . Although I ' d like to 7 consider myself a trendsetter, I hate to think you would deny me this for the simple fact that when 8 you do invest so much in purchasing a property and building a home, you' d like to get the most out of 9 it . I am restricted on narrow lot size . There' s a lot of things that we had, sort of box-like . 10 You can see the construction, we' re not going too crazy. I think the only real luxury would be the 11 elevator, but I'm thinking at this stage of the game, yeah, I can run the steps up and down, but I 12 had my mom at her age she couldn' t do it , I'm trying to think ahead. 13 BOARD MEMBER GOEHRINGER: I'm still trying to determine why it' s three stories . Meaning it' s 14 a high level ranch with two stories . BOARD MEMBER WEISMAN: It' s not a 15 ranch. It' s two full stories . BOARD MEMBER GOEHRINGER: I understand, 16 it ' s a front to back colonial . MS . RIVERA: Obviously it' s an AE . Zone 17 we cannot dig a basement it has to be at grade level . The other homes are not considered three 18 stories because part of the foundation was backfilled; in this case they cannot be, so 19 therefore, they' re only considered two and a half stories, but since Mrs . Thermos cannot backfill 20 any of the foundation, it' s now considered three story and we have to put a sprinkler system in. 21 BOARD MEMBER GOEHRINGER: That' s what I ' m trying to get the Board to understand is this 22 aspect of the flood plain situation. What are the utility prohibitions; do they have to be elevated? 23 MS . RIVERA: It will be elevated approximately 18 inches . 24 BOARD MEMBER GOEHRINGER: So therefore within the confines of this elevation that' s 25 mandated, she cannot backfill, the walls will be existing, but again, my question to her for my July 27, 2006 24 1 2 interpretation of why it' s three stories she' s telling me there' s no utilization of that basement 3 area in no way except for this elevator shaft that will go down and pick up whomever wants to utilize 4 it , in this particular case it will primarily be used by her parents to the really first and second 5 story. MS . RIVERA: Right . The Building 6 Department deems it a three-story because we cannot backfill the garage or basement . It will 7 be a totally exposed foundation and the reason that the house is even pushed back to 57 feet is 8 because the water table and the septic system, normally we only have --to go back 35 feet but in 9 order to fit the septic system that the Board will be requiring we have to push it back 57 feet, 10 which is 20 some-odd feet more than the rest of the house . And again that' s because of the high 11 water table there . Those other houses were expanded prior to the rules and regulations of the 12 three stories and what not . The realization by the Building Department is 50 percent of the 13 foundation has to be backfilled in order not to consider it a story. 14 BOARD MEMBER GOEHRINGER: Which would be the normal case in a high ranch? 15 MS . RIVERA: Correct . And if you look down the block at the other houses, they are 16 partially, I would say a good 50 percent of them are backfilled because they border the bluff much 17 closer than Mrs . Thermos' does, her bluff is .further back. So we are restricted in that we 18 cannot build the normal foundation. BOARD MEMBER SIMON: The issue is not so 19 much what use is put to that ground floor, but whether it' s backfilled or not . 20 MS . RIVERA: Correct . What makes it a three-story is the fact that the foundation cannot 21 be backfilled. I do believe that regardless of this being a three-story building, she had a 22 sprinkler system in, she can utilize the space however she wants to, but it' s deemed a 23 three-story because you cannot backfill the foundation more than 50 percent . 24 BOARD MEMBER GOEHRINGER: Is that sprinkler system going to encompass the lower 25 story? MS . RIVERA: It has to. July 27, 2006 25 1 2 BOARD MEMBER GOEHRINGER: What other measures are you going to take to try to take some 3 of that cement out of the view. of the contiguous neighbors; is -there anything you can do? 4 MS, RIVERA: Thinking of either doing stucco or cultured stone to cover it, and the 5 front will have a staircase and hoping to maybe do a fountain in the landing. 6 MS . THERMOS : It' s very pretty. CHAIRWOMAN OLIVA: You' re stuck with what 7 you have because of the FEMA regulations . MS . RIVERA: Absolutely. 8 BOARD MEMBER SIMON: I'm understanding this better. Now, with regard to the height 9 limit, which is within the code, and, of course, whether it' s two and a half stories or three 10 stories, it' s still 35 foot limit . Is the height limit there consistent with that of 'the other 11 neighbors? MS . RIVERA: Absolutely, the median to the 12 ridge is 34 ' 611 . BOARD MEMBER SIMON: It helps me anyway to 13 see that this anomaly is a consequence of FEMA regulations and not that of putting a house that 14 is going to be 20 feet higher than any other house . 15 MS . THERMOS : Right . BOARD MEMBER WEISMAN: You intend to 16 sprinkle?. MS . RIVERA: We have no choice . 17 BOARD MEMBER WEISMAN: I didn' t see anything noted on the plans . . 18 MS . RIVERA: On the building plans submitted to the Building Department, the notes 19 said we need to have a sprinkler in order to get a building permit . 20 BOARD MEMBER GOEHRINGER: In the normal situation of the FEMA regulation, FEMA is very 21 explicit about the lowest floor elevation -- I ' m not referring to the first floor elevation, I ' m 22 referring to the lowest floor -- I don' t mean to keep pondering this, but we' re going to have more 23 of these, and we' re going to be discussing more of these I 'm sure .with you also because of the 24 situation down there on Sound Beach Road, specifically, FEMA tells you that there is no 25 utilization of that lowest floor area and that will be the case . July 27, 2006 26 1 2 MS . RIVERA: No. BOARD MEMBER GOEHRINGER: What do they 3 say? MS . RIVERA: FEMA is concerned about 4 literally the deck and the elevation facility, et cetera . She is in an AE zone as opposed to the VE 5 zone . If you look at the house on the corner, she only had to go up maybe 30 inches in order to go 6 over the AE zone, and that is living space for her.. Their main concern is that you do not have 7 the utilities and any living space below that elevation. 8 BOARD MEMBER GOEHRINGER: Let me rephrase that . Cement floor, ground floor elevation as 9 opposed to first floor elevation, are there any prohibitions to that lowest cement floor elevation 10 in reference to utilizing living space? MS . RIVERA: I believe you cannot have 11 living space below the AE elevation. BOARD .MEMBER GOEHRINGER: Which is the 12 lowest floor elevation, meaning lowest habitable floor elevation. Thank you. 13 CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO : What height is the 14 lowest habitable floor elevation on this house? MS . RIVERA: It' s the first floor. 15 BOARD MEMBER DINIZIO : How high is that? MS . RIVERA: Nine feet above grade . 16 BOARD MEMBER DINIZIO : There' s a slab on the ground, then cement that goes vertical for 17 nine feet, then there' s some beams that go across, the bottom of that beam' is where you can start 18 your living space, anything underneath that they' re telling you you got to put your hot water 19 heater, you have to raise it 18 inches above the floor -- 20 MS . RIVERA: The slab. BOARD MEMBER DINIZIO -- of this 21 basement? MS . RIVERA: Correct . 22 BOARD MEMBER DINIZIO: The hot water heater is -- 23 MS . RIVERA: It could be lower. BOARD MEMBER DINIZIO: I ' m saying you' re 24 utilizing this for utility, you can' t put a couch down there, you can put curtains in the window, 25 doors, you can' t put a couch, pool table, anything that' s considered living space in there, boxes in July 27, 2006 27 1 2 there naturally. Okay, I think that' s all I have on this . We granted a variance on this . 3 BOARD MEMBER WEISMAN: A side yard, huge back yard. 4 BOARD MEMBER GOEHRINGER: Mrs . Thermos, I just want you to be aware that my questioning of 5 both you and the builder is that issue of living area on the slab, that' s, what I have been 6 concerned about, and having the Board understand that aspect . We have been doing these variances 7 for years, we just haven' t done them recently. That was the reason why it was important for me to 8 question both you and the contractor. MS . THERMOS : I' m actually glad that Chris 9 was here and I'm glad she cleared it up . CHAIRWOMAN OLIVA: Is there anyone else 10 who would like to comment on this application? If not, I' ll make a motion to close the hearing and 11 reserve decision until later. (See minutes for resolution. ) 12 ------------------------------------------------- CHAIRWOMAN OLIVA: Our next hearing is 13 for Robert and Betty Fox on Laurelwood Drive in Laurel . Hi, Aggie . 14 MS . DROZDOWSKA: Good morning, Agatha Drozdowska, for the applicant . Basically what 15 we' re asking for is to add -- we have an existing front stoop out of concrete with two steps leading 16 down into the front entry and we' re proposing to put a covered porch protruding about two feet 17 beyond the existing nonconformance of the existing steps . The lot is zoned for a 50 foot setback; we 18 are proposing 4516" to the step itself . We have two steps leading up to the front porch. That is 19 our request . CHAIRWOMAN OLIVA: We made an inspection 20 of the house and actually we granted the variance . It' s not really out of character with the rest of 21 the houses . MS . DROZDOWSKA: We' re keeping what' s 22 basically there' s as much as you saw within the existing home, the home steps back, yeah, and 23 we' re just we have recently done an addition to the home itself, and we' re just bringing the 24 character of it up a little bit to make it prettier. 25 BOARD MEMBER GOEHRINGER: The elevation helps out a lot too . It makes it look more July 27, 2006 28 1 2 palatial . MS . DROZDOWSKA: It breaks up the length 3 of basically. We put a reverse on the front of it , and we do have the continuous shed-like porch. 4 It .breaks it up a bit the lengthiness is definitely taken care of . 5 CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: No, it' s very 6 clear. The drawings are clear, it was well staked at the site . I have no questions . 7 CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No . I have no 8 questions . It' s what I .read, right, you got cement, add a couple more feet to it? 9 MS . DROZDOWSKA: Going a little beyond what' s there now. It' s basically more in the 10 steps than anything, our porch comes out to pretty much where the existing step ends, and then yes, 11 we still do have additional two steps beyond that. It ' s the necessity of that that pushes us beyond 12 the nonconformance as it is . CHAIRWOMAN OLIVA: Michael? 13 BOARD MEMBER SIMON: I have no questions . CHAIRWOMAN OLIVA: Is there anyone else 14 who would like to comment on this application? If not, I' ll make a motion to close the hearing and 15 reserve decision until later. (See minutes for resolution. ) 16 ------------------------------------------ -- ----- CHAIRWOMAN OLIVA: Next application is for 17 Pamela Smith on Dolphin Drive in Greenport . For an as-built deck which must have been there for a 18 long time. MS . MESIANO: It' s been there for quite a 19 few years, I don' t know when it was built . CHAIRWOMAN OLIVA: Do they want to sell 20 the house? MS . MESIANO: No. She just wants to make 21 everything legal . As far as . I know Mrs . Smith intends to keep the house, but, you .know, make 22 things legal if one wants to refinance, sell, et cetera, it' s a better thing to do now than later. 23 Just a few points, the variance that we' re requesting is minimal . I think it amounts to 112 24 square feet . The required front yard setback is 35 feet, so there is essentially a 6 . 6 foot by 17 25 foot section of the existing deck that is nonconforming, which only constitutes 112 square July 27, 2006 29 1 2 feet . Doesn' t present a sight obstruction or any detriment to any nearby property owners . I don' t 3 think it has any negative impact on the neighborhood, the community within any of the 4 tests as far as the tests for a variance . It' s a very simple application, if you have any 5 questions, I' d be glad to answer them. CHAIRWOMAN OLIVA: Jerry? 6 BOARD MEMBER GOEHRINGER: No, as long as it remains open. 7 CHAIRWOMAN OLIVA: Leslie? BOARD MEMBER WEISMAN: No questions . 8 CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No questions . 9 CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: I think this is the 10 one I looked at . On April 5, 2002 , there was a request noting a violation having to do with this 11 specific deck, which apparently was built in 2000 as far as I can tell from the record. Then on 12 November 8th of the same year there' s another letter from the Building Department saying that 13 you are again, this is months later you are currently in violation of Chapter 45, in other 14 words, there was a violation that was noted at that time, and presumably the applicant has been 15 aware for some time that this has been essentially an illegal operation and there were efforts made 16 to correct it; apparently nothing has happened. So my first question when I looked at it was why 17 exactly are they applying for a variance four years later when, in fact, it was very clear in 18 the documents that it was in violation. Nothing has changed except that now they want to have the 19 Zoning Board not notice the history of this and give a variance so that will make these previous 20 violations simply wipe them away. MS . SMITH: I can clear that up . I got 21 the violation and realized that I was over the line . I tried to do this myself . I went to the 22 Planning Board. I got my set of plans . ' I did what I could to facilitate getting the variance, 23 and it kept slipping by the wayside, not knowing how to proceed. I had to actually spend twice the 24 amount of money redoing the initial plans, getting new stamps, at that point, two, three years into 25 this process I got Cathy to help me out because I didn' t know what to ask for in the variance . July 27, 2006 30 1 2 That' s all I can basically tell you. BOARD MEMBER SIMON: What we' re seeing is 3 the latest result in four years of struggle with the Building Department who said you didn' t do it 4 the way you were supposed to do it, and now you' re saying it' s okay, we' re not going to fight that, 5 but we want the blessing of the ZBA to say it' s okay because you could have done it that way in 6 the first place? MS . SMITH: The deck was built when I got 7 the violation. BOARD MEMBER SIMON: When was the deck 8 built? MS . SMITH: Probably early 2001 . 9 BOARD MEMBER SIMON: I believe you acquired the property in 2000 . 10 MS . SMITH: November of 2000 . BOARD MEMBER SIMON: Was the deck built 11 without a permit? MS . SMITH: We went over an existing 12 porch, there was an existing porch by the front door and the side of the house and then we 13 expanded on it where the apron had been, and I guess, due to lack of knowledge, we built too 14 much. BOARD MEMBER SIMON: You didn' t get the CO 15 for the completed deck in 2001; is that correct? MS . SMITH: No, I didn' t have a CO. I 16 bought the house without a CO. BOARD MEMBER SIMON: But the deck wasn' t 17 there . MS . SMITH: There was a covered or a 18 concrete porch. . BOARD MEMBER SIMON: Was the porch 19 nonconforming, did it go out as far as the deck now goes? 20 MS . SMITH: No, I think we were six inches over. 21 BOARD MEMBER SIMON: The deck as it stands now is 12 feet in width. 22 MS . SMITH: Right, it' s like a foot past like where the last part of the house comes . 23 BOARD MEMBER SIMON: And the code I believe would have required it to be half that 24 width. MS . SMITH: Yes . 25 BOARD MEMBER SIMON: So somehow or other I guess it' s kind of disappointing that your efforts July 27, 2006 31 1 2 were unsuccessful to try to . address these two letters of violation. 3 MS . SMITH: I went down immediately. BOARD MEMBER SIMON: I' m not saying you 4 didn' t try, I'm saying you were unsuccessful . MS . SMITH: Trying to correct what I 5 needed to do and not understanding and trying to. proceed. I kept going down to the Town Hall . 6 BOARD MEMBER SIMON: I for one, I don' t know how my colleagues feel, I .would be interested 7 to examine the file to see exactly what they had at that time and what they told you if there were 8 there was a written record. MS . SMITH: I . don' t know. I talked to a 9 very nice young fellow and I asked him what do I need to do to get these building plans together 10 and submit them and get pictures and what not, and he kept giving me different advice and it was very 11 hard for me to follow-through. It' s not the house I live in. It' s a second home . 12 CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If 13 not, I ' ll make a motion to close the hearing and reserve decision until later. 14 (See minutes for resolution. ) MS . MESIANO: I would like to submit two 15 letters from neighbors in support of the application and photographs . 16 ------------------------------------------------- CHAIRWOMAN OLIVA: Next hearing is for 17 John Rabkevich on Cedar Drive and Millers Road in Mat.tituck, the little green house . 18 , MR. RABKEVICH: It' s a tough spot to find. Here is the affidavit of posting. 19 CHAIRWOMAN OLIVA: What would you like to tell us? 20 MR. RAKBEVICH: I would like to say that we' re requesting a variance to add to my little 21 green ranch that' s out of conformity on my front road setback. It' s a two bedroom and we' re going 22 to demo one bedroom and add it to the living room and add two bedrooms, so we' ll have a three 23 bedroom ranch. The house existing now is 900 square feet, and we have two little boys that are 24 growing bigger every day and we' re busting out of the seams . We have an odd-shaped property, which 25 doesn' t help us conform, and I 'm adding a front porch onto the house and make it look for July 27, 2006 32 1 2 architecturally correct for the area, break up that front gable . 3 CHAIRWOMAN OLIVA*: Did you put a swimming pool? 4 MR. RAKBEVICH: Right . . We would ,like to put in a ' swimming pool, and I was basically told 5 that' s my front yard also . CHAIRWOMAN OLIVA: You really have a 6 problem. MR. .RAKBEVICH: I have two front yards, 7 I ' m not- sure if I have a side yard and the back yard is our driveway, which totally blew, us out of 8 the water because we have. been there for 12 years and we always considered that our front yard. 9 CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: The rule about two 10 front yards doesn' t really set out to take care of situations like yours . It' s set up basically when 11 you have houses on a corner and it isn' t clear which .is the front yard, it has to do with 12 setback. In this case, if you didn' t know the rule you' d say, they' re putting the pool in their 13 backyard. And you look at this funny little road down there and you say, oh, no, no, it' s something 14 in the code . This is a long way of saying I don' t have any questions . 15 CHAIRWOMAN OLIVA: Good, Jerry? BOARD MEMBER GOEHRINGER: These very nice 16 people are neighbors of mine and that has no bearing on the situation. I have absolutely no 17 objection. CHAIRWOMAN OLIVA: Leslie? 18 BOARD MEMBER WEISMAN: I just hope you can keep your cherry tree . 19 MR. RAKBEVICH: That was the selling point when we bought that house . 20 BOARD MEMBER WEISMAN: You will have to have a very careful builder. I have no questions . 21 CHAIRWOMAN OLIVA: Jim? BOARD MEMBER DINIZIO: No questions . 22 CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If 23 not, I' ll make a motion to close the hearing and reserve decision until later. 24 (See minutes for resolution. ) - ------------------------------------------------- 25 CHAIRWOMAN OLIVA: Next hearing is for Alfred Frodella at 40735 County Road 48 in July 27 , 2006 33 1 2 Southold. You also have .-- MS . FRODELLA: Everyone always wonders 3 what' s behind those columns . Basically we' re asking for a variance for 4 an as-built structure . During construction, the access to the basement was changed from outside 5 Bilco doors to the stair down to the basement for inside stairs and that change resulted in just 6 squaring off the corner of the house it' s probably like a seven by nine space to accommodate the 7 stairs to the basement . Since that change was only extending the line to the house that was 8 there, we didn' t think that there was any type of issue with that . The house I guess was originally 9 built nonconforming, which we really didn' t know about so basically that' s why we' re asking for a 10 variance . BOARD MEMBER GOEHRINGER: Since this is my 11 application the seven by nine, is that issue, it' s this issue right here, this one right here? 12 MS . FRODELLA: This is the old house; this is the old footprint, correct? This area was just 13 closed in here for stairs to the basement . BOARD MEMBER WEISMAN: I ' m dieing of 14 curiosity what are all those buckets? MS . FRODELLA: When they put the crushed 15 stones in we had a huge sink hole . No swimming pool on the right of way. That was crushed stone 16 that sunk. BOARD MEMBER WEISMAN: I 'm glad you 17 clarified it, I found it very difficult to figure out what you were applying for. 18 MS . FRODELLA: We didn' t imagine that it was something -- we were just enclosing it . 19 z BOARD MEMBER WEISMAN: How did you find out that you had to get a variance? 20 MS . FRODELLA: Had we submitted the changes to move the stairs, I got a call, last 21 summer, saying, sorry; I said what? It' s done already, it ' s built . 22 BOARD MEMBER WEISMAN: The Building Department notified you. 23 BOARD MEMBER DINIZIO : Rightly so . They were right in doing what they did. It' s just a 24 question you have to travel that long, winding road. 25 MS . FRODELLA: And a lot of money, surveys and -- July 27, 2006 34 1 2 CHAIRWOMAN OLIVA: Is there anyone else who would like to comment on this application? If 3 not, I' ll make a motion to close the hearing and reserve decision until later. 4 (See minutes for resolution. ) - ------------------------------------------------ 5 CHAIRWOMAN OLIVA: Next application is for Stephan Sequoin on Lighthouse Road in Southold. 6 MR. RUBIN: I'm seeking a variance because everything built that would be built on this site 7 would be nonconforming. CHAIRWOMAN OLIVA: We know. 8 MR. RUBIN: There are some complications here and I brought along a complete set of 9 drawings to distribute to everyone . BOARD MEMBER GOEHRINGER: Could you state 10 your name for the record, please? MR. RUBIN: Michael Rubin. To try and 11 make things a little easier for what I'm doing, I did a little sketch and these are the construction 12 drawings . Part of the reason I 'm distributing these plans again I understand you didn' t have a 13 complete set, and the other reason was a carport was proposed and' a neighbor , objected, and I 14 convinced my clients to get rid of the carport, so the new drawings will not have a carport at 15 all . The reason the neighbor objected was the carport extended right to the property line . 16 BOARD MEMBER GOEHRINGER: Mr. Rubin, I ' m going to take the lead on this because this is 17 mine . I don' t particularly have any major concern with this application. However, with the fact 18 that we' re utilizing somewhat if not the entire footprint, which makes me happy, because we have 19 major problems there with the way this house is sandwiched onto this small little postage stamp on 20 top, I just wanted to say that we have a huge, brand new roof line which is a contemporary roof 21 line, which I have before me, and before the Board, and we have a problem of water runoff . 22 That is one of the most tantamount issues that we have to deal with at this point . We have to use 23 large gutters, appropriate down spouts to capture that water so it doesn' t run down the cliff and I 24 am incorporating that in my decision. And I think and I 'm happy that the prudent aspect of not . 25 having the carport is there because I think that' s the part where some drainage has to be put in to July 27, 2006 35 1 2 retain holding tanks or dry wells that may not be accommodating enough to run that water back to the 3 back of the dwelling. It' s not really back of -- MR. RUBIN: The street side . 4 BOARD MEMBER GOEHRINGER: Referring to the neighbor side, southeast side whatever you want to 5 call it . Those are the issues that I think of are most tantamount in this particular design. I have 6 to tell you from the standpoint of being on this Board for a very long time, this is a very nice 7 gesture giving us all of this so we can understand. It was very difficult for me to 8 understand. And I was over there, and I 've seen this property several times . Prior to 9 Mr. Hurtado' s application, which he' s sitting in the audience, which he has the house next door, 10 your client had certain concerns when he built that house, and last week when I was back to the 11 house. So that' s just my opinion. CHAIRWOMAN OLIVA: I 'm also just a bit 12 worried about the 3 . 9 foot on your side yard for emergency access because you don' t really have 13 that much room on the other side . I don' t see a mark here, what is the distance between the 14 northeast corner of the house? MR. RUBIN: I think you' re referring to 15 5 ' 8" on the other side? BOARD MEMBER WEISMAN: It ' s 3 ' 9 " on the 16 side by the road. CHAIRWOMAN OLIVA: I know that, how about 17 the other side of the house? MR. RUBIN: 5 ' 811 . 18 CHAIRWOMAN OLIVA: How about the other side? 19 MR. RUBIN: I ' d have to measure it, it ' s not been recorded, it' s obviously larger. 20 BOARD SECY. KOWALSKI : If you would .like you could confirm it by letter to us . 21 MR. RUBIN: Sure . CHAIRWOMAN OLIVA: It' s so tight for 22 emergency access . BOARD MEMBER WEISMAN: That' s absolutely 23 true but this addition, modest in scale, is not going to change those dimensions . 24 MR. RUBIN: No . There' s already a mud room on that side . If it' s , any consolation, we' d 25 tend to rebuild that fence and that walkway would become more open than it is now. It' s just junk July 27, 2006 36 1 2 things that parade along that side . BOARD MEMBER SIMON: I was having trouble 3 what was happening and when. When you get to the bluff side, it looks as though that first floor 4 there was either new or redone . Was that a first floor there; what was that to be? 5 MR. RUBIN: The existing condition on the bluff side is the previous owner built a kind of 6 bay or bowed condition on the building, that extend out past the present roof line and we' re cutting 7 that all back. We' re actually making a smaller building of it altogether. 8 BOARD MEMBER SIMON: How far back? MR. RUBIN: If it bows like that, we' re 9 cutting it back to the minimum condition. We' re getting rid of the bow altogether. 10 BOARD MEMBER WEISMAN: That as-built deck done on the top of the bluff was demolished now? 11 MR. RUBIN: Yes . BOARD MEMBER SIMON: That was a 12 free-standing deck? MR. RUBIN: No, actually it was tied to a 13 bulkhead. CHAIRWOMAN OLIVA: Anything else? 14 BOARD MEMBER GOEHRINGER: No . I don' t know if I 'm going to mention this bowing in the 15 decision because it' s rather diminimus . BOARD MEMBER WEISMAN: It' s here, it' s to 16 be removed. BOARD MEMBER GOEHRINGER: I understand. 17 It' s hard to 'describe in the decision. I 'm going to say we' re going to use the original existing 18 footprint . If you were going out to the bow I would have to mention it . But if you' re 19 withdrawing back to the original footprint . MR. RUBIN: It' s partly because it' s so 20 badly built that condition, and we would like to put in French doors on that side so it makes a 21 simpler elevation. BOARD MEMBER WEISMAN: More appropriate . 22 MR. RUBIN: My thought too. BOARD MEMBER WEISMAN: I have no further 23 questions . Thank you for this full documentation. CHAIRWOMAN OLIVA: Jim? 24 BOARD MEMBER DINIZIO: No . I ' m a little confused here . On the new set of drawings he gave 25 us, there' s A4 the page I 'm on. MR. RUBIN: Yes . July 27, 2006 37 1 2 BOARD MEMBER DINIZIO : ' There' s a 3 . 9 setback right there near the driveway, what is the 3 existing setback there now or is that existing already? 4 MR. RUBIN: No . The light and dark shaded. area represents new construction, going to the 5 dark dotted line, that' s the existing. So we' re actually adding another three feet . 6 BOARD MEMBER DINIZIO : On that side, that' s a front yard setback, what is the existing 7 setback right now.? MR. RUBIN: 619" . 8 BOARD MEMBER DINIZIO: So seven feet, six feet? 9 MR. RUBIN: Something like that . BOARD SECY. KOWALSKI : On one of the 10 surveys it shows it as seven feet? MR. RUBIN: It gets confusing, it' s seven 11 feet measured from the actual building, then some of them are measured from the fireplace and some 12 are inside dimensions . On our drawing seven feet picks up the surveyor' s information it' s a five 13 foot actual piece of building added to the fireplace . 14 BOARD MEMBER DINIZIO : The notice of disapproval said the existing -- I 'm sorry, I ' m in 15 the wrong one -- BOARD MEMBER GOEHRINGER: June 16 , 2006 . 16 BOARD MEMBER DINIZIO: That the existing setback is 3 . 9 . 17 BOARD SECY. KOWALSKI : It should be seven. There was an error on the Building 18 Department' s disapproval . BOARD MEMBER WEISMAN: So the existing 19 setback as-built now is seven, didn' t feel like it . 20 BOARD MEMBER DINIZIO : So he' s being denied. He never was denied for that . 21 MR. RUBIN: That is to say he never articulated what needed to be said. 22 BOARD MEMBER DINIZIO: Right . I was looking at the 3 . 9 thinking that was your existing 23 setback. MR. RUBIN: Then I would be building 24 within the envelope, I wouldn' t have to come for a variance . 25 BOARD MEMBER DINIZIO: You would have to come for a variance . July 27, 2006 38 1 2 MR. RUBIN: No . We wouldn' t be increasing the envelope . 3 BOARD MEMBER DINIZIO : You' re increasing the degree of nonconformity. 4 BOARD MEMBER GOEHRINGER: You have to come both ways . 5 BOARD MEMBER DINIZIO: I 'm thinking you have to be denied for that . 6 CHAIRWOMAN OLIVA: I think you need a new notice of disapproval ,saying the. existing is seven 7 foot back. BOARD SECY. KOWALSKI : You have to get a 8 new set of plans . MR. RUBIN: I mean, you know it and I ' ve 9 always known it . CHAIRWOMAN OLIVA: It goes into our 10 records and somewhere down the line we could get some sort of a mix-up. 11 BOARD MEMBER DINIZIO: Here' s my problem with it, this was published in the paper. 12 MR. RUBIN: I appreciate that and it has to be published again. 13 BOARD MEMBER DINIZIO: Honestly, everybody should comply with that because someone might say 14 they' re close to the property line, I want to do something about it . 15 BOARD SECY. KOWALSKI : If I may, Jim, when I advertised it, I advertised it generically 16 without .the numbers in there, and I did say the increase in nonconformance, the legal notice would 17 cover it , but he should still get a new disapproval to bring the file up to date . 18 BOARD MEMBER GOEHRINGER: That' s good. BOARD SECY. KOWALSKI : If that' s all 19 right . BOARD MEMBER DINIZIO : Somewhere along the 20 line it needs to be clear because it wasn' t clear at all . When I looked at this, if the gray line 21 is where you' re building and the dashed line is where the existing building is, you' re increasing 22 the degree of nonconformity there by 50 percent . BOARD SECY. KOWALSKI : Actually I knew it 23 was seven foot existing, it' s just 'on the disapproval I took it as more of a typo. 24 BOARD MEMBER DINIZIO : I would like that cleared up. 25 BOARD SECY. KOWALSKI : Sure . BOARD MEMBER DINIZIO : In that vein then, July 27, 2006 39 1 2 I ' m trying to probably not inclined to grant that part of the extension that seems to me that your 3 side yards are definitely closed in. enough. We always have trouble with access and this is just 4 exasperating an already tight situation. So, I just want, to be fair to you, I would not be 5 inclined to give you the 3 . 9 . I would prefer you stay at the seven feet on that side . 6 MR. RUBIN: That shoots the whole design then I think. The purpose of requesting it was I 7 wanted to move an interior stair. If you look at the plans, you' ll sort of see why. The secondary 8 reason for that stair was it was such a bad stair it actually had a riser and tread 8 ' 6" by 8 ' 611 . 9 It was an incredible stair. BOARD MEMBER WEISMAN: That wouldn' t even 10 be allowed. MR. RUBIN: That' s an OSHA thing. That 11 was where I got the idea it would be nice to incorporate it into the mudroom, the mud room is 12 only a certain portion of that bump anyway, and bring it outboard of the house so I don' t have to 13 have it as part of the interior space . BOARD MEMBER DINIZIO : I understand 14 architecturally, and probably the way it fits, but honestly, that' s not what this Board considers, 15 not really so much concerned about aesthetics as we are about setbacks and property lines and 16 access to the side yards by the fire department . MR. RUBIN: My question then is, is it 17 possible to consider making out of the fence that is on the property line a wider condition even 18 wider than seven feet? BOARD MEMBER DINIZIO : Honestly, I 'm 19 worried about the seven feet . I think you' re already over the codes, you' re already 20 nonconforming and you want to increase that nonconformity by about seven percent . I see no 21 compelling evidence here that says that that has to be done . 22 CHAIRWOMAN OLIVA: Michael? BOARD MEMBER SIMON: Yes, I have some 23 sympathy with Jim' s remarks . I realize it' s affecting the design and if there is a problem 24 it' s that there is this wonderfully large kitchen, which is a nice thing to have, and whether you can 25 have a kitchen that large when the consequence is to push the front yard setback back to 3 . 9 feet, July 27, 2006 40 1 2 that I think is the nut of the problem. MR. RUBIN: It' s got the whole utility 3 thing there . Everything, utilities, the washer, dryer, the hot water heater is all in that 4 kitchen. BOARD MEMBER WEISMAN: It' s not that large 5 either. BOARD MEMBER GOEHRINGER: Can I ask a 6 question? Is there any possibility of shrinking . that area a little bit and kind of incorporating 7 it a little more in the kitchen but maybe not total of seven feet . 8 MR. RUBIN: I think the answer has to be yes . Although I can' t tell you how because I 9 haven' t had a chance to study it and I can' t tell you how much either. 10 BOARD MEMBER WEISMAN: You have to put a header, you have to put a bearing wall . 11 MR. RUBIN: I' d rather not do that . BOARD MEMBER WEISMAN: Not my fault, just 12 lose the closet . It is where it ought to be, the entry and the stairs . 13 BOARD MEMBER GOEHRINGER: Why don' t you study that and we' ll discuss it ; is that all 14 right, Ruth? MR. RUBIN: Before I resubmit anything I 15 should get a ruling, right? BOARD MEMBER WEIS.MAN: Do we need to get 16 the appropriate disapproval, first? BOARD SECY. KOWALSKI : Submit the plans to 17 the Building Department, have them issue a new disapproval and then you can submit that to us in 18 writing. MR. RUBIN: I know I have to submit that 19 to the Building Department . BOARD MEMBER WEISMAN: These plans you 20 gave us and then they will say there' s not a nonconformance . 21 MR. RUBIN: What would be the next step in dealing with you folks? 22 BOARD MEMBER WEISMAN: It' s like the same conversation we' re having now. It' s almost 23 impossible to have any kind of emergency -- you can' t with 3 . 9 , you can barely do it with seven, 24 you could, but with 3 ..9 there' s potential hazards for firefighters to access the property. 25 CHAIRWOMAN OLIVA: Especially your location on the bluff . July 27, 2006 41 1 2 BOARD MEMBER SIMON: y I think we' re talking about it would be useful for all concerned, a Plan 3 B, were at least outlined. So, if this is going to be denied as written, we often give approval 4 for alternative, but we can' t construct the alternative without some kind of guidance, 5 irresponsible for us because we' re not all builders . SG what would it look like if there 6 were, if something had to be submitted rather than having to go all the way back, there may be an 7 alternative form that we could approve, and then you could be on your way. 8 BOARD SECY. KOWALSKI : You have a choice, you can either ask for more time and adjourn the 9 hearing for another month so you have time to submit the new plans, or you allow the Board to 10 close the hearing and you submit that in writing anyway and let the Board make a decision, it 11 doesn' t mean they would have to approve that plan. MR. RUBIN: Which makes the most sense . , 12 BOARD MEMBER WEISMAN: Mr. Rubin, if there' s a way 'that you can incorporate a five foot 13 side yard, rather than .3 . 9 . MR. RUBIN: Thank you, that' s my next 14 question. BOARD MEMBER WEISMAN: That is guideline . 15 BOARD MEMBER GOEHRINGER: There' s another little problem from a fire standpoint, and that is 16 it ' s a very difficult house to get around. Conceivably through the reconstruction of this, I 17 was hoping that the applicant would not leave that barrier up along the road, and that he would come 18 up with a specific plan to create that aspect of privacy but yet have the ability to get through 19 that privacy either through gates or some other manner. 20 MR. RUBIN: You' re asking me to restudy the fence? 21 BOARD MEMBER GOEHRINGER: I 'm asking you to rip all that junk down. Because I want to tell 22 you it inhibits anybody from getting anywhere . It is the biggest prohibition I 've ever seen on a 23 small piece of property. MR. RUBIN: I know it' s a major slum on a 24 small piece of property. BOARD MEMBER GOEHRINGER: If that could be 25 ripped down with a very nice fence or landscaping, even if it requires a variance . I don' t see it July 27, 2006 42 1 2 being a problem with this Board, so we can at least get into this thing with another 3 applicat-ion, , if it requires a fixed situation. MR. RUBIN: The two issues are the access 4 to the properties in time of need and also just the look of it from the road. 5 BOARD MEMBER GOEHRINGER: The ability• of snapping a lock and getting in is what we need .6 from an -emergency standpoint . MR. RUBIN: Would something like a large 7 rolling gate that could actually "open up the whole property twice as wide as it now is serve your 8 purposes? BOARD MEMBER GOEHRINGER: That' s fine . 9 MR. RUBIN: That way you snap a lock and push this large wall away. Obviously, everybody 10 wants privacy. The Lighthouse wants privacy from the building, and the house owner wants privacy 11 too . We were planning on planting, some of these things are dead, and replanting all that with shed 12 glow, which is a nice local and beautiful plant and it, also low maintenance, and is local . That 13 was the idea to make a sort of hedge row of those plans . Thank you, folks, I have my work cut out 14 for me . BOARD MEMBER WEISMAN: It' s in the owner' s 15 interest to have safety. CHAIRWOMAN OLIVA: And to keep all that 16 stuff that' s flammable, it' s a brush fire waiting to happen. 17 MR. RUBIN: It' s terribly flammable, the old wood floor that' s down there is something I ' ve 18 never seen in my life, it' s a compressed board that almost explodes into fire . 19 CHAIRWOMAN OLIVA: Is this going to be a complete demo? 20 MR. RUBIN: No . It' s going to be completely reworked. The envelope will stay 21 exactly the same, the structural frame stays the same, we' re insulating, new siding, all new 22 windows, what you might expect from a complete. renovation. We' re still not decided whether we 23 want shake shingles or clapboard. Have '.any opinion? 24 BOARD MEMBER GOEHRINGER: I wouldn' t put shakes on the sound, unless they were plastic . 25 I 'm talking about the way it gets battered. MR. RUBIN: We were thinking of the wide July 27, 2006 43 1 2 clapboard. Thanks, folks . CHAIRWOMAN OLIVA: Mr. Hurtado, do you 3 have something you want to add? MR. HURTADO : Yes . I' d like to thank the 4 applicant very much for taking the carport down, I didn' t know that, I appreciate that very much. 5 I also had the same concerns that was brought up 'about the nine feet, and I just have a 6 letter that I didn' t have a chance to do . I have seven copies (handing) , and it just reiterated 7 everything you said so that' s fine . I 'm. still having a little bit of a 8 difficult time -- I haven' t seen the architectural drawings because they were not in the folder, so I 9 will look at them when they get in the folder; but I' m still concerned about the nonconformity being 10 increased because the front from seven feet to 3 . 9 . 11 CHAIRWOMAN OLIVA: That' s what we were talking about . 12 MR. HURTADO : I know you were I just want to tell you' I object to that . I ' m sure there 13 could be another design using the same footprint that' s there now, and I would like to see the 14 applicant work on. that using the same footprint . A good architect should be able to accomplish that 15 because just based on the building in relationship to the lot, it' s so small how much can a lot like 16 that sustain in the size of a building. That' s .all I would really want to say. And I 'm sure a 17 good architect, and I 'm sure Mr. Rubin is, ' can design it and stay on the footprint . 18 BOARD MEMBER DINIZIO : Your concern is that front yard, right? 19 MR. HURTADO: Absolutely, it' s so close now and I was a little concerned when you were 20 talking about taking the fence down and all that fire -- 21 CHAIRWOMAN OLIVA: Brush? MR. HURTADO : Brush -- because that kind 22 of shields the building. Right now to my way of thinking the building is not attractive and if you 23 take that down -- BOARD MEMBER GOEHRINGER: We want it 24 redone . MR. HURTADO: But it' s still so close, 25 3 . 9 , for a front yard. I mean, my front yard is 40 feet, so 3 . 9 ,is awfully close to the road, July 27, 2006 44 1 2 that' s my concern, that should be all the neighbors' concerns is the front yard, that' s what 3 you see . I 'm so happy he took. the carport down, that makes me very happy. I think he can come up 4 with a design, I 'm sure he can. Thank you. BOARD MEMBER DINIZIO : Which is my point 5 exactly, we've got I think it' s 35 feet . We have a house that' s well advanced of that already and 6 they' re asking us to go further. I don' t think it would be fair to you when we meet next week and 7 you' re not here and we' re bantering back, and I convince them that you are not getting that 8 setback increased any more, because I am dead set against that . 9 MR. RUBIN: So five feet is no longer? BOARD MEMBER DINIZIO: Wee, no, that was a 10 consideration by one of our Board members, they threw that out, but I think quite honestly, you're 11 too close to it already. MR. RUBIN: We know everything on that 12 property is nonconforming. BOARD MEMBER DINIZIO: I agree and I am 13 not going to exasperate that particular situation with a variance to an already nonconforming 14 setback and increase it . I mean that' s only my opinion is and everybody else has their opinion. 15 But I think you can know next week that that' s what I 'm going to be saying, and I'm going to try 16 to convince my Board members that this is not a good precedent to set . I realize they all stand 17 on their own. We have people that want to build brand new houses that we turn down, or people who 18 want to put a porch on their house, 35 feet and it was supposed to be 40 feet and they were turned 19 down, and suddenly we' re going to have a house that' s seven feet front yard, and we' re going to 20 make it four feet . Honestly, that makes no sense to me whatsoever. 21 MR. RUBIN: That was my suggestion, one possible trade-off would be completely reconfigure 22 how the driveway and access gate works so that we would fashion an access gate that would be twice 23 as wide as . it is now moving down towards the bluff, that way the fire department or if anyone 24 had to get onto the property, it would be much easier because I could increase the access 25 dimension more than seven feet . BOARD MEMBER DINIZIO : I understand but July 27, 2006 45 1 2 the standard for this town is 35 feet . So you' re already well over that . 3 MR. RUBIN: There isn' t 35 feet from the front to the back. 4 BOARD MEMBER DINIZIO: I couldn' t agree more . 5 MR. RUBIN: For meetings like this I understand .is a case by case basis is because we 6 have such a terrible nonconforming situation already. I ' m actually trying to propose something 7 that would help the particular situation, not a general situation but this particular one, making 8 it better going forward, so you' re happy in terms of access and safety and aesthetics, and my client 9 is happy because his house is more livable than it was a minute ago. 10 BOARD MEMBER DINIZIO : Honestly, you haven't convinced me . 11 MR. RUBIN: That's why I brought up the thing about the stair, the stair is not a 12 conforming stair. Try and understand that that stair with an 8' 6" riser tread wouldn' t pass 13 muster with anyone; and it' s how the house happens to work at the moment . And I tried to reconfigure 14 it . It just seemed it was easier to think of it as an- outboard position than try to wrap it 15 inside . I obviously could put it inboard if you folks say that' s where it. has to be, it has to 16 be . I was just thinking that it has to be a little bit of space on the outside for us is a big 17 deal in terms of the development of the interior space of the house . I 'm certainly sympathetic 18 with everything you' re saying. I just have a little confusion as to whether I should even go 19 forward with a plan that attempts to rethink this as a five foot yard setback instead of abandoning 20 it altogether. BOARD MEMBER WEISMAN: I think the intent 21 here is not to tell you how to design something, but to present to you the concerns, and I think 22 you understand. The wider that, the bigger that front yard is, the closest you can get it to the 23 existing is the most desirable . In addition to which recreating that privacy condition along the 24 front that also provides access, all of that will improve both bringing things up to code, 25 continuing the privacy, dealing with the neighbor' s concerns it' s a whole .jigsaw puzzle . I July 27, 2006 46 1 2 think the intent is to try and create a design that has the least change in the degree of 3 nonconformity that you can. Keep that front yard as close to the seven feet as you possibly 4 can. If you say you can do it, fine, if you say can' t, you have to explain why you can' t, so we 5 can evaluate it ; that' s up to you. I think it' s placed appropriately, but I am concerned. 6 CHAIRWOMAN OLIVA: Mr. Rubin, maybe it would be better if we just adjourned this until 7 August 31st . I think that would be easier than if we have a little disagreement here, if you show us 8 some more plans . MR. RUBIN: Sure, can I send them to you 9 beforehand? CHAIRWOMAN OLIVA: That would be 10 wonderful . I' ll make a motion to adjourn this hearing until 9 : 30 on August 31st . 11 (See minutes for resolution. ) - - ----------------------------------------------- 12 CHAIRWOMAN OLIVA: Our next hearing is for Steven Matteini and Stenda Realty, LLC on Willow 13 Terrace in Orient . Hi, Mark. MR. SCHWARTZ : Mark Schwartz, architect 14 for the project . I have some photographs (handing) . 15 BOARD MEMBER GOEHRINGER: What exactly happened here? 16 MR. SCHWARTZ : It' s my understanding that the code allows you a five by six platform in the 17 front yard, I had designed something too big. We were going to get a variance, Jim Fitzgerald was 18 doing that work, and I guess he didn' t realize that it was already built and Don is the builder 19 here . He had the plans and it just got really built by mistake . We were planning to wait, 20 obviously until we got the variance and hopefully the approval to build the roof . I think the roof . 21 is a problem, the platform I think is okay code-wise . 22 MR. CONNELLY: My name is Donald R. Connelly, the builder. The platform I think I 23 made it four foot out and like six foot, and when I was doing the roof, the way it was designed, I 24 think the roof encroaches maybe a foot or so . BOARD MEMBER GOEHRINGER: Nice job on the 25 house . BOARD MEMBER WEISMAN: So that' s why you July 27 , 2006 47 1 2 didn' t request this variance before it ,was built . 3 � MR. SCHWARTZ : Exactly, he was building it, I designed the house, I 'm not on the job on 4 this particular project . ` MR. CONNELLY: It was a miscommunication, 5 _ I didn' t realize the roof was also I thought the platform so I made the platform a little smaller,. 6 instead of five by six I made it four by six and I didn' t realize that the roof was part of it . He 7 called me up telling me the roof is encroaching. BOARD MEMBER WEISMAN: What are the 8 dimensions of the roof? MR. CONNELLY: I believe off the house 9 it' s 618" . MR. SCHWARTZ : 6' 811 . 10 BOARD MEMBER WEISMAN: So it' s eight inches, 5' 6" is for .an open platform? 11 BOARD MEMBER DINIZIO: Covering that porch is what the problem is, and it' s 28 feet to the 12 front yard, that' s basically what it is . MR. SCHWARTZ : Based on my measurements 13 that we took 29 . BOARD MEMBER DINIZIO: As long as you' re 14 within. . BOARD SECY. KOWALSKI : The surveyor shows 15 it as 29 . BOARD MEMBER DINIZIO : It does . But 16 that' s to the bottom of the step; does the porch overhang? 17 MR. CONNELLY: You can see on. the drawings, on the steps, the columns come down and 18 they' re built into the steps, that' s where the little overhang. is . 19 BOARD MEMBER DINIZIO: That' s what they' re saying. 20 MR. CONNELLY:, And, I didn' t realize it . I figured we were good. 21 BOARD MEMBER WEISMAN: It ' s the soffit beyond the column? 22 MR. CONNELLY: Correct . BOARD MEMBER GOEHRINGER: So it ' s actually 23 28 then? BOARD MEMBER WEISMAN: That ' s with the 24 roof overhang. I have to write this, but weren' t we going to keep this hearing open? Did Jim 25 request -- BOARD SECY. KOWALSKI : The owner July 27, 2006 48 1 2 authorized the architect and builder here instead. MR. SCHWARTZ : Jim' s on vacation. 3 BOARD SECY. KOWALSKI : We did get the owner' s consent on that . 4 CHAIRWOMAN OLIVA: Is 'there anyone else who would like to comment on this application? If 5 not , I ' ll make a motion to close the hearing and reserve decision until later. 6 (See minutes for resolution. ) (Lunch recess : 12 : 25 p.m. to 1 : 00 p .m. ) 7 - - ------------------------------------- - --------- CHAIRWOMAN OLIVA: We are back on the 8 record. I' ll reconvene our meeting of July 27th. We have a request for a Town-wide interpretation 9 of Zoning Code Section 280-241 regarding the following question: Where a legal nonconforming, 10 preexisting dock/marina use is issued a wetlands permit that requires docks to be relocated in the 11 same general area and reduced to both and number, would compliance with those conditions cause the 12 docks/marina to lose their legal nonconforming status under Section 100-241? Who would like to 13 go first? Mr. Samuels? , MR. SAMUELS : I 've given Linda some copies 14 for each and all of you and also for the Town attorney. I honestly believe -- and I 'm not an 15 attorney -- but I honestly believe that there is a very simple solution to your -problems and to the 16 problems of the Trustees . The principal reason I ' m optimistic is that now the Office of the 17 Inspector General of the State of New York, who was referred this case by the Attorney General, 18 was doing an investigation of the selective enforcement of the Tidal Wetlands Law by Region 1 19 personnel . I 've always been puzzled by the inaction of the DEC in not issuing violation for 20 unpermitted structures, the base of which is on private property, and this is, quite frankly, 21 against Article 25 of the DEC' s law. I think most of you who know me -- by the way, my name is Tom 22 Samuels and I' m from Cutchogue, and I am president of James H. Rambo Corporation,• a marine contractor 23 with offices in Southampton and Cutchogue . So I probably know as much about Article 25 as anyone 24 in this room because I 've been dealing with them since 1973 when the moratorium went into effect . 25 Now I know, as I matter of absolute fact, that the DEC cannot issue permits for property July 27, 2006 49 1 2 that the applicant does not own -- does not own. Now, whatever the reasons for the DEC not doing 3 this will of course come out in the Inspector General' s final report, how long that will take, I 4 don' t know. But I 'm absolutely certain that that part of the Article 25 , which was adopted by 'the 5 legislature is a true fact . In point of fact , you cannot get a dock permit for a legal right of way 6 from the DEC. There may have been in the past some docks off right of ways issued by the Town, 7 I ' m not aware of any, however, so what is the . solution? The Paradise Point Association, wants 8 and must have dockage in their opinion. And the owner of the property is not willing to give them 9 that right . So what they have proposed is deeding to the association a piece of property 75 feet by 10 75 feet at the present terminus of the dock. It would be deeded to the association; the 11 association right now has very little option because they don' t own anything on the basin that 12 I am aware of, nothing. The corporation, Paradise Point Corporation may still own a parcel, I 'm not 13 aware of one that' s suitable for docks . Now, what does this do? This allows the DEC to entertain an 14 application for docks, the configuration of which, they will have a hand in. The Trustees, who 15 always have had the waters under the basin and in the channel in their jurisdiction according my 16 interpretation of the patens . Very few people know as much about the patens or admire the 17 Trustees more than I do. In my mind they' re the most highly respected body in the Town. They were 18 placed in the terrible position, which is yet to be resolved, and the 19 legal fight has gone on for some time now. The Town has spent huge quantities of money in legal 20 fees . Paradise Point Association has spent huge quantities in legal fees, which they really need 21 to maintain the infrastructure of Paradise Point, which is in terrible shape . . 22 The Trustees issued a permit for a new dock at its present location, but I believe they 23 were not entitled to do so or had a right to do so because it' s a privately owned piece of property. 24 The owners of the property, of course, are making what I consider a generous solution to the 25 Paradise Point Association problem. The claim has been made that a dock is worth $300, 000 to each July 27, 2006 50 1 2 owner of a piece of property on Paradise Point . That' s probably a little excessive but certainly 3 the right to dock a boat has value . Mary Zupa just wants a building permit to 4 build her house, which does not require any variances . It' s a legal lot, it has the best 5 bulkheads on Paradise Point . I have been working on Paradise Point since 1971 . I have built 95 6 percent of the bulkheads on Paradise Point . I have built bulkheads in the basin always with a 7 Town Trustees permit . So when the issue came up that did they really own it, and they had to go to 8 court and Judge Cohalan ruled that the Trustees did, in fact, own the bottom, I knew it was a fact 9 and I've known it for years and I was astounded by the contention that the Paradise Point Association 10 owned the basin, they don' t. So, that is why I ' m here, the problem was selective law enforcement by 11 the DEC, there would not have been a problem here . Now, I don' t know how or why the DEC acted 12 as they did. I have no idea. There.' s been a great many suspicions, I'm not going to get into 13 it because it has nothing to do with the solution, I am presenting a solution, the final solution for 14 the Paradise Point Association as far as this parcel is concerned. That other parcel that is in 15 litigation, I don' t know anything about . I bulkheaded the Zupa' s property for the 16 Association -- for the corporation, excuse me, they wanted to sell it, this was in ' 81 when the 17 Planning Board said, yeah, these are building lots . It was paid for by the corporation. It ' s 18 been a long time since ' 81, and we had to replace the bulkhead on the bay side of Mrs . Zupa' s 19 property. . We also had to replace the bulkhead on the entrance of the property at the Zupa' s 20 expense . It was in terrible shape . During the period we worked there we were harassed on various 21 occasions by various people for various reasons . There was somebody always complaining, but 'we got 22 the job done, and I think this is the way to go . I think the association docks need a lot of work 23 the way it is . They can be rebuilt in a conforming way.. The ZBA does not have to invent 24 anything to make it legal because you can' t -- in my opinion, you can' t make it legal . You cannot 25 make it legal, and you' re not going to get a zone change to make it anything but what it is, July 27, 2006 51 1 2 residential property. You will not get a zone change . It will be literally impossible . I can' t 3 see you issuing - a use variance on property that' s owned by Mrs . Zupa. 4 That' s my solution. I think it' s a common sense solution. I am grateful to the Zupas for 5 offering to give 75 by 75 feet, what is that worth on Paradise Point? I would say a lot of money. I 6 have built docks for people that buy a parcel just for a dock, just so they can have a dock and have 7 a boat that' s fairly close to home so they can jump out and go fishing or whatever they want to 8 do. It' s not uncommon, but they buy the property. In this case they' re going to be given the 9 property. There is not complete uniformity in the association members' idea about this whole 10 business business . There are some that support it, there are some that don' t support it . It' s 11 unfortunate, it' s been a terrible mess . People who I have known for years don' t wave to me when I 12 go down there because I 'm working for the Zupas . The gentleman who was at the forefront of all this 13 called me and said don' t work for the Zupas, you' ll never get another job on Paradise Point . I 14 said, I ' ve done all the work, it' s done . I got them the only groin field in- Southold town, new 15 one, and they have all those people have beaches on the bay side facing Jessup' s Neck. So I ' m 16 familiar with all the problems . This is the solution, make it legal, Mr. 17 Hamilton' s problems with the Inspector General, I don' t know what's going to .happen, I can be almost 18 certain of something, someone else will be assigned to the matter because you cannot -- he 19 calls himself the chief law enforcement officer of the DEC, maybe he is, he has many titles, but I 20 can' t conceive of the state not enforcing its own law, I can' t conceive of it, it' s never happened 21 that I know of . Was it political? I don' t know, I can' t figure it out and I 'm reluctant to ask. 22 I 'm open to any question you might have but essentially that' s what I have to say, you have an 23 illegal set of docks, they can be made legal by Mary Zupa . The DEC can issue permits . The 24 Trustees can reexamine the whole thing, which I am sure they' re willing to do, and come up with a new 25 design, not the one that was essentially forced on them because they had to do something, but they' re July 27, 2006 52 1 2 in a box. The north jetty at Paradise Point is 3 nonfunctional . It will not hold fill, it has to be completely rebuilt, and I ' m not looking for the 4 job. But it' s almost impossible to hold the channel with a leaking box jetty on one side . It 5 happens to be the updrift side, and that' s a problem. The jetties are not owned by Mr . Zupa or 6 by the association, they' re on .New York state bottom. They' re there with the permission of New 7 York state . Mr. Zupa has very successfully tied in his bay bulkhead into the south jetty, I say 8 successfully because it wasn' t easy given its states of repair and its low elevation, but I 9 guess that' s about all I am saying. I know you have spent hours on this . There' s been tremendous 10 rancor, tremendous ill feelings . This is not the Southold I moved into in 1959 . It' s changed a 11 heck of .a lot . But there are still good people here and there are still good people in Paradise 12 Point . And I think this, what I would say is a voice of reason allowed by Mary Zupa, should give 13 you pause . Now I have given you each -- I' m not 14 expecting you to read all this stuff now, I 've given it to you, and you can at length discuss it 15 among yourselves . I ' ll be glad to attend any work sessions you have or anything else . I just want 16 to allow Mrs . Zupa to have her house, and I think she should. I personally am tremendously fond of 17 her, she' s a wonderful, wonderful woman. That said, ask me any questions you like . 18 CHAIRWOMAN OLIVA: Anyone? BOARD MEMBER GOEHRINGER: Nothing at this 19 point . BOARD MEMBER DINIZIO: I have a question 20 but probably not concerning this in particular, but the Trustees are asking us a question and 21 that' s why we' re here, it' s come to my attention that docks don' t require building permits; is that 22 correct? MR. SAMUELS : Never has been in Southold. 23 Riverhead is now doing that . BOARD MEMBER DINIZIO: In other words they 24 go before the building inspector? MR. SAMUELS : It' s relatively easy for the 25 building inspector to give a permit because the conservation board in Riverhead really is the one July 27, 2006 53 1 2 that determines what is done, whether a dock' s built or et cetera. 3 BOARD MEMBER DINIZIO : Ours is the Trustees do that? 4 MR. SAMUELS : Just the Trustees . BOARD MEMBER DINIZI.O : So if the Trustees 5 say you can have a dock, they can construct that dock without the benefit of a permit? 6 MR. SAMUELS : That' s the way it has always been. 7 BOARD MEMBER DINIZIO: Any reason why it ' s been that way? I know it' s attached to the 8 person' s lane and then at some point then it goes into the town lane . 9 MR. SAMUELS : The town has guidelines for length of docks, location of docks, et cetera and 10 so on and so forth and the DEC does, they frequently clash as to what' s acceptable and 11 what' s not acceptable, there have been some knock-down drag-out arguments . 12 BOARD MEMBER DINIZIO : On the length. MR. SAMUELS : On the length. 13 BOARD MEMBER DINIZIO : I ' m more. concerned about the nuts and bolts and size of wood, the 14 structure . Any building in the town has to be built to a certain specification, and we inspect 15 that, except docks . MR. SAMUELS : Yes, and let me add to what 16 you' re saying, there has been a concerted effort by the DEC and the Trustees in the five eastern 17 towns to downgrade the specifications of docks for various reasons . In Southampton and East Hampton, 18 we have to use tropical hardwoods, which makes a . great, deal of sense we cut down the rain forests 19 to build docks . It' s increased the cost of the structures by about 38 percent . The DEC is trying 20 to get all docks built with four by four pilings, which are totally inadequate, which give us great 21 business in the spring after the ice has destroyed the docks, .it' s wonderful, sometimes it takes six 22 months to restore them all . The DEC would also like to eliminate floating docks, they shade the 23 bottom, the little fishies and so on and so forth, benthic organisms . We resist it wherever we can, 24 we make every effort to increase the specifications so these are well built structures . 25 We do not like to walk away from junk that we know is going to fail . But our hands are tied. We've July 27, 2006 54 1 2 got four agencies to deal with. The Corps of Engineers to their credit want things built right . 3 They don' t want to see. docks floating around the bay after a bad storm or a bad winter. 4 So I would not be adverse to giving Jimmy King the right to telling me I can use 12 inch 5 pilings on docks or eight inch or ten inch and 4 by 6 girders and two inch decking or three inch 6 decking, I would not be adverse to that if the town would want to make specifications for typical 7 residential docks . CHAIRWOMAN OLIVA: Mr. Samuels, thank you 8 for your presentation, we need to get on with Jimmy King, ask him what his interpretation is, 9 hear his remarks . MR. SAMUELS : Fine, thank you. Tom. 10 CHAIRWOMAN OLIVA: Tom, thank you. MR. KING: Jim King, Town Trustee . This 11 has been an ongoing saga for us over these docks, and we had some confusion as to if we issued a 12 permit for a dock we downsized it, because this docking arrangement didn' t meet some of the 13 specifications we need to see, the question is, does it affect to be able to have a dock there . 14 CHAIRWOMAN OLIVA: The nonconformity in other words? 1.5 MR. KING: Yes . One other issue that probably won' t be talked about, I think we need to 16 talk about, but I think we need to look at the code because there' s two different definitions in 17 the code for marina. CHAIRWOMAN OLIVA: You mean Marine 1 and 18 Marine 2? MR. KING: No, the definition of "marina" 19 under definitions . BOARD MEMBER GOEHRINGER: That' s what I 've 20 been saying? MR. KING: It' s very confusing. You have 21 a definition, and I think there' s a definition in Chapter 32 . Any questions? 22 BOARD MEMBER DINIZIO : Yes, don' t go away. Quite honestly, I' m going specifically to the 23 question you asked us, which is building docks on Trustee land, there' s no dispute on that . Whether 24 or not you' re saying if you change it or you tell them to tear it up, put it someplace else, then 25 that because it' s nonconforming and most marinas are nonconforming -- July 27, 2006 55 1 2 MR. KING: I don' t know. BOARD MEMBER DINIZIO: In particular, if 3 we' re saying it' s a nonconforming marina, does it then require them to either become conforming or 4 ask for a variance if from this Board? Is that kind of the gist of what we' re talking about here? 5 How did you get to this point? I mean, it seems to me ,like if a building permit is not required by .6 this Town then this Board doesn' t see any application that concerns that unless we have 7 original jurisdiction. We take our cue from the building inspector. If the building inspector 8 says it doesn' t need a building permit, there' s no way for him to deny that a building permit, for 9 them to come to us, that's what we , see . MR. KING: I never understood how the 10 Zoning Board got in this, in the dock business . ASST. TOWN ATTY. CORCORAN: Maybe I can 11 help a tiny bit . As I understand it, and, Jim, you were there, I think the association came for a 12 permit for this set of docks, and the Trustees worked with them and came up with a configuration,- 13 reconstruction/reconfiguration whatever, we all have. different words for it that they wanted to 14 see built, trustees preferred that they were willing to permit . As I understand it then the 15 association -- and that is also subject to challenge by various parties and courts the 16 issuance of the permit and whether it' s the good and right thing to do . However, the association 17 then had some concerns arising from ZBA' s prior decisions because there is an existing group of 18 docks, that is an existing nonconforming use, right or wrong, and they feared that if they went 19 and changed those that they would then lose their nonconforming use and have no right to use it at 20 all . MR. KING: Right . 21 ASST. TOWN ATTY. CORCORAN: So in order for the Trustees to get their permit blessed by 22 this Board, they asked the question before us today? 23 BOARD MEMBER DINIZIO: I 'm a little unclear still how you get to that point when 24 they' re not changing the use,. We' re talking about use here as. opposed to actual structure, which is 25 we very rarely grant a use variance and if they' re not changing the use and not increasing or July 27, 2006 56 1 2 decreasing the nonconformity, maybe Walz comes into effect here? 3 CHAIRWOMAN OLIVA: No . BOARD MEMBER DINIZIO : That' s a good 4 thing. Then I don' t know how the question gets asked, how we can answer this question but to say 5 that, no, it does not require a variance, and I want to hear everybody' s story, but - - 6 MR. KING: I personally didn' t see how they could lose it, you' re making it a better, 7 more efficient marina. CHAIRWOMAN OLIVA: You',re the one that ' s 8 directing them to change it because it' s a more appropriate use . So therefore it was not the 9, association or the Zupas that asked to have the docks moved. It was the Trustees that asked the 10 docks to be moved? BOARD MEMBER DINIZIO: We have no 11 jurisdiction over those docks whatsoever . MR. KING: The argument to use was we. 12 can' t move it because if we do, we' re going to lose our nonconforming use . 13 BOARD MEMBER GOEHRINGER: Jim, is the lineal footage of the docks similar to the lineal 14 footage of the docks that were scrapped or going to be scrapped? 15 BOARD MEMBER DINIZIO: Again, I don' t see that . 16 BOARD MEMBER GOEHRINGER: I'm just asking. 17 BOARD MEMBER GOEHRINGER: One of the issues is we have a policy you cannot exceed more 18 than one-third of the way across the waterway with a structure,' that' s so if someone on the opposite 19 shore, you still have room for navigation. This present configuration exceeded that . So we backed 20 it up to conform with that . BOARD MEMBER WEISMAN: You' re trying to 21 create more conformity. MR. KING: Size-wise it' s not a lot 22 different, if you total it up. BOARD MEMBER DINIZIO : A- marina is 23 marina.. MR. KING: That' s the problem I have with 24 the definition of marina. I consider that more of a community dock than a marina. A marina to me is 25 open .to the public for a fee to tie boats up to, this isn' t . July 27, 2006 57 1 2 BOARD MEMBER DINIZIO: Our code doesn' t say that . 3 BOARD MEMBER GOEHRINGER: I think what .we need to do, and unfortunately we didn' t do in this 4 interpretation, is the ability to direct the words, let' s just take the code out of 100-13 5 where it says marina or private boat basin as Ruth and I just discussed. We need to differentiate 6 between a marina and never call this a marina . It never should have been called a marina, it should 7 never be called a marina. It is a private boat docking area in a private boat basin, and that' s 8 it . I think we need to differentiate between that . If not in this interpretation but in a 9 future interpretation, and then whatever- the code committee intend to limit that to, is coming up 10 with an actual phrase to say what that is is what we have to do . 11 MR. KING: When I looked at 100-13 , that definition, almost any residential dock with a 12 dock and a couple of floats could be a marina . BOARD MEMBER GOEHRINGER: Jim, what 13 happened to us here on Mill Creek, a person had three boats docked, and he rented one of those 14 slips, which he was not allowed to do. He left this town hall and had a heart attack just as he 15 rounded the corner going out the door. Fortunately we saved him, but it had become such a 16 situation everybody gets so upset and so worked up over these things, it' s come to the point where we 17 have to differentiate between those two . MR. KING: My big thing is this thing has 18 gone on and on and on. We just want to reach closure on it, get the new dock where it belongs 19 and people just get on with their lives . BOARD MEMBER. DINIZIO : Who is actually 20 asking this question; did the question come from you or did it come from the applicant to you? 21 MR. KING: It came from through . the Board from us . They told us we cannot move the dock 22 because we' ll lose our nonconformity if we do this . That' s why we asked you will they lose it 23 or won' t they? BOARD MEMBER DINIZIO: That' s pretty 24 simple . MR. KING: I didn' t think it would be this 25 complicated. MR. SAMUELS : Can I ask Jimmy one July 27, 2006 58 1 2 question? Do you issue docks to applicants who don' t own the property where the dock is to be 3 located? Have you ever done that? I don' t recall . 4 MR. KING: We usually issue to the owner of the property. 5 MR. SAMUELS : It has to be the owner of the property is the applicant . 6 MR. KING: But in this case they had a right of way. We try to work with people and 7 reach neighborly solutions . We beat ourselves up sometimes over it . We try to help people out , and 8 a lot of times it comes back and it bites us . CHAIRWOMAN OLIVA: Yes, sir. 9 MR. PASCA: My name is Anthony Pasca, Esseks, Hefter and Angel . We represent the 10 Paradise Point Association. I want to try to refocus this a little bit because what' s been 11 presented to you is a generic question, a Town-wide interpretation. We' re not the 12 applicants . The Trustees have asked a question, which they' re entitled to do under certain 13 provision of the zoning codes at our request, and I want to give you a little bit of background why 14 we' re here and -- CHAIRWOMAN OLIVA: You asked the Trustees 15 for this interpretation? MR. PASCA: Let me explain. 16 CHAIRWOMAN OLIVA: Please do . MR. PASCA: This isn' t the first time that 17 this Board has dealt with the association' s . marina -- I 'm going to call it a marina for lack 18 of another term, but I do agree with you, Mr. Goehringer -- 19 BOARD MEMBER GOEHRINGER: I really wish you wouldn' t do that . 20 MR. PASCA: All right, let me call it the association' s docks . Back in 2004 , this Board on 21 an application by the Zupas said the association' s docks are legal preexisting, nonconforming use in 22 terms of zoning, and that' s been through the .court system, your decision' s been upheld, and we' re not 23 here to relitigate that decision. After that point, the association wanted to do some repairs 24 to their docks, in-kind/in-place . We weren' t proposing to reconfigure them at all . And under 25 the Wetland Code Chapter 97, the Trustees had jurisdiction over this, and they had to perform a July 27, 2006 59 1 2 full review. As part of the review"process, they said we want to look at other configurations and 3 we showed them some configurations, some alternatives, it wasn' t what we were asking for 4 but we did it at their request . And after many, many months in September of last year, the 5 Trustees came down with a decision that said, we' ll let you rebuild your docks but we want it 6 configured in a certain way. What they came up with, it wasn' t ideal for us because we were 7 losing about three or four boat slips, but we were willing to go along with it . You guys should have 8 copies of the surveys, it shows the existing configuration of three docks with the Trustees' 9 approved configuration. You can see what the Trustees did, they tried to bring the docks into 10 conformance with their regulations, Instead of three docks, we now have one dock. It' s in the 11 same area as the other docks, instead of spanning 100 foot shoreline, it covers a lot less of the 12 shoreline . It .doesn' t extend out as far into it is basin and it cuts down about 20 percent of the 13 linear footage of actual dock space . It' s just a rough guess but that' s probably pretty accurate . 14 Like I said, we're going to lose about three or four boat slips out of it . We' re willing to go 15 along with, but when the Trustees' decision was challenged in court, the neighbors raised an 16 argument that the Trustees' decision is illegal because of .the zoning code because since it' s a 17 nonconforming use under zoning if it' s moved even slightly in the way the Trustees asked us, it 18 would violate this section of the zoning code . We don' t agree with that, and I don' t 19 think the Trustees agree with it otherwise they wouldn' t have asked us to do with what they did, 20 but you have to understand, we have been sued many, many times, and we' re sued on every little 21 thing that happens and before we take a chance of complying with their decision, we said we want to 22 find out whether the Zoning Board, which is the only board that ,has the jurisdiction to interpret 23 the zoning code, whether you guys agree with our interpretation and I presume the Trustees' 24 interpretation. Now, we couldn' t make an application to you .guys directly because as you 25 pointed out, there' s no way to get here. BOARD MEMBER GOEHRINGER: Mechanism. July 27, 2006 60 1 2 MR. PASCA: We can' t get a building permit . I don' t think you can get a denial from 3 the Building Department since they don' t have jurisdiction over the docks . So we made a request 4 to the Trustees to make the request to you because the Trustees did have the power under the code to 5 refer to you a question of Town-wide interpretation. So that' s why we' re here and the 6 question you read at the beginning of the meeting, it doesn' t say Paradise Point anywhere in it, it 7 doesn' t ask whether the Paradise Point Association' s docks are legal or not, it just says 8 where there is a legal preexisting, nonconforming use and the Trustees have asked to reconfigure and 9 make it smaller in the same general area, does that violate the zoning code, that' s the only 10 question that I' m aware of that we' re here to answer. We support the Trustees -- I presume the 11 Trustees' position is that it shouldn' t violate the zoning code . Again, that' s your call, that' s 12 why.you guys have the power of interpretation. Just briefly though, to actually look at 13 the zoning code because that' s why we' re here, really the question is do we violate I presume 14 Subsection A, 241, which says a nonconforming use shall not be enlarged, altered, extended, 15 reconstructed, restored or placed on a different portion of the lot or parcel of land occupied by 16 such use on the effective date of this chapter, nor shall any external evidence of such use be 17 increased by any means whatsoever. So, given the reduction of the size of the 18 docks, the reduction of the intensity of the use, I ' d say we' re losing three or four boat slips, 19 given the physical shrinking of the entire area of the basin that' s being taken up by these docks, I 20 don' t know how the question could be answered any other way that they should be allowed to have some 21 flexibility in their design, the Trustees that is . 22 The only thing I ' d like to say at the end is again, we' re not the applicants but I assume 23 that there are other docking facilities, community docks, probably some marinas that might be 24 impacted by this question, and I think that as a matter of policy, the idea is to shrink 25 nonconforming uses, and that' s certainly reflected in your code . And when the Trustees and when .the July 27, 2006 61 1 2 DEC are presented with these types of situations, shouldn' t they have the ability to do what they 3 think is right environmentally and within their jurisdiction since they have the principal 4 . jurisdiction over this as long as the end result is not an expansion of the nonconforming use but 5 if anything a reduction of it . That' s our position, if you guys have any questions, I ' d be 6 happy to address them. CHAIRWOMAN OLIVA: No . 7 BOARD MEMBER DINIZIO: I want to ask questions, I'm sorry. I need to understand this . 8 I don' t know that the town wants to shrink nonconforming uses, they want to eliminate them. 9 MR. PASCA: That is a policy, but nonconforming uses are tolerated. 10 BOARD MEMBER DINIZIO: I think you either have a nonconforming use or you don' t have it . 11 The use isn' t the size . Nonconforming setbacks are sizes we always want to try to reduce that . 1.2 But a use is completely different . If we define what a marina is, and we have no control over the 13 size of that marina, I'm talking about the Zoning Board, then we have no jurisdiction -- this is 14 only my opinion as to whether or not the size of the docks or the location of the docks, or even 15 the elimination and putting back up of the docks says that you have now lost your nonconforming. 16 MR. PASCA: I 'm not saying you do have jurisdiction over that question', but you have 17 jurisdiction over interpretations of the zoning code and that' s why I 'm trying to refocus this on, 18 it ' s not a specific question of whether our particular docking facility does or doesn' t, 19 should or shouldn' t do what the Trustees say, but what the question is is that there' s an interplay 20 between the zoning code, which has its own nonconforming use provisions and says 21 nonconforming uses shouldn' t be expanded. They' re allowed to be reconstructed to a certain extent, 22 and they' re allowed certain flexibility, but they' re not to be expanded. And one of the things 23 it says is they' re not to be relocated, a nonconforming use . 24 BOARD MEMBER DINIZIO: A use . MR. PASCA: Yes, this Board has found, 25 this is a preexisting, nonconforming use under the zoning code . Because if you went in today to July 27 , 2006 62 1 2 create a community docking facility, you couldn' t do that in a residential district as a matter of 3 right, you would need permission from this Board. So the Board back in ' 95 , then again in 20'04 , this 4 Board said okay, but it' s a preexisting, nonconforming use . So that.' s why the 5 nonconforming use provisions in 241 come into play. That was the argument made by the neighbors 6 that because of 241 you can' t move this over. CHAIRWOMAN OLIVA: Can I interrupt you? 7 It ' s not that the neighbor, that you want to move these; it is another entity, an elected body, the 8 Trustees, that have come in and said, , the original ones are too far out in the basin, you' re being 9 detrimental to the bottom. So therefore we were going to shrink your dock and floating docks, and 10 it' s the Trustees that have told you to do this . It' s not an applicant . 11 MR. PASCA: I agree, but I ' m just telling you we want to comply with what the Trustees are 12 doing. We' re going to lose our nonconforming rights because it violates zoning. So we' re just 13 trying to find out -- CHAIRWOMAN OLIVA: I think your definition 14 of nonconformity in this instance is a little bit , skewed because it' s the Trustees that are telling 15 you, it ' s not you that' s saying I want to reduce it . 16 MR. PASCA: I agree it is two different uses . But there are zoning questions and there 17 are Chapter 97 wetlands questions . And it' s sometimes hard to keep them separate because 18 zoning can say a use is legal, a use is not legal . The Trustees have their own jurisdiction to 19 regulate docks . Right now we' re at what could be nothing or it could be a collision course . If the 20 Board were to say that Trustees under zoning you don' t have any power to reconfigure a 21 nonconforming docking facility or nonconforming marina, then the Trustees' ability to do what they 22 have to do is going to be -limited. If you say as long as the nonconforming use is not expanded or 23 enlarged or any physical signs are exceeded the way the code' s written, then they have the 24 flexibility to do what they have to do. The only reason we' re here is to see whether under zoning 25 there' s a collision course or not, and we don' t think there is . We' re in a little bit of an odd July 27, 2006 63 1 2 situation being before you but under the circumstances where we get sued for doing 3 anything, dropping something in the bay, we' re going to get sued for it . So we have to know 4 before giving up or losing some nonconforming right whether you agree with the interpretation 5 that we have and . that we think the Trustees have . That' s the only reason we' re here . 6 ASST. TOWN ATTY. CORCORAN: Tony, do you have a view as to whether Section 246 is 7 implicated at all? MR. PASCA: Is that the involuntary move? 8 I think it' s an. alternative way of looking at it . To the extent that we didn' t ask for the 9 reconfiguration and that it was put upon us by the Trustees . 10 ASST. TOWN ATTY. CORCORAN: Here' s what 246 says so the Board can consider it and anyone 11 else who wants to speak to it can consider it . And I'm not expressing an opinion on it . 246 , 12 says Sections 100-241 (a) and (b) -- and (a) is what we've been dealing with here today -- and 243 13 herein are not intended to apply to involuntary movements of uses or structures as a result of 14 condemnation actions or other litigation. It' s clearly not condemnation action, I guess the 15 question would arise is it other litigation. MR. PASCA: Or are those illustrative 16 examples of an involuntarily move? Again, that' s a zoning question. 17 ASST. TOWN ATTY. CORCORAN: What is your point of. view? 18 MR. PASCA: I think an involuntary move as long as it• doesn' t enlarge a nonconforming use, 19 it should be allowed. It would certainly be within the policy of the zoning code . There' s no 20 question that zoning allows nonconforming uses to continue, but it doesn' t want them to expand. 21 BOARD MEMBER WEISMAN: May I ask a question? I just want to clarify what' s actually 22 requested here is that the Trustees by their requirements are attempting to mitigate the 23 severity of environmental impact, reduce it substantially and to bring the reconstruction of 24 docks into closer conformity to what would be required should they be built anew; is that right? 25 MR. PASCA: I think so. BOARD MEMBER WEISMAN: I just wanted to be July 27, 2006 64 1 2 sure I understood, and now I understand the two codes . 3 ASST. TOWN ATTY. CORCORAN: We have another presentation coming. 4 BOARD MEMBER DINIZIO: I 'm sorry, I must pick your brain and I think we have to . I still 5 think we' re confusing uses, a marina use with structure . 6 MR. PASCA: There is a difference, no question but -- 7 BOARD MEMBER DINIZIO : If those docks didn' t exist it would still be a marina . If boats 8 could pull up there and do their thing and hop onto the land, in our definition of our code it 9 would still be a marina. MR. PASCA: It might be, I don' t know. I 10 haven' t thought that through. But the difference between nonconforming structures and nonconforming 11 uses and nonconforming building, they' re very subtle differences, but they' re each dealt with in 12 a different section of the code; 241 deals with nonconforming uses . 13 BOARD MEMBER DINIZIO : Right , but you' re saying by increasing the size of the dock you' re 14 increasing the use . MR. PASCA: I never said increase, I said 15 we' re decreasing it . BOARD MEMBER DINIZIO : You' re saying 16 decreasing the size of the dock decreases the use . MR. PASCA: It deintensifies . 17 BOARD MEMBER WEISMAN: The intensity, not the use . 18 MR. PASCA: It' s not a building so you can' t measure in terms of floor area like you . 19 could a nonconforming nightclub in a residential district . That would be an easy way to say I ' m 20 reducing the size of this nightclub by shrinking the building down. It' s not a building, we' re 21 working with -- zoning codes are never perfect, that ' s why we have zoning Board because they work 22 through the imperfection. BOARD MEMBER SIMON: Part of the problem 23 is the ambiguity of the word "use . " Use ordinarily refers to the use that preexists, but 24 here we' re talking about uses which sort of live on their own, and that is the use of the bay, the 25 use of a dock is something which involves subtle changes in the meaning of the word use . I think July 27, 2006 65 1 2 the quarrel between Jim you -- MR. PASCA: I didn' t know there was a 3 quarrel . BOARD MEMBER SIMON: I mean the point of 4 focus has to do with this particular ambiguity. Is it changing the use of something if you do the 5 same thing someplace else . Under some people' s interpretation of the code, it is a change of use; 6 under somebody else' s, it has nothing to do with use . I think it has to get past and not worry 7 about whether it is a use or not or whether it ' s a structure because in these cases it' s so 8 intertwined, that it' s not useful to try to take the echo strands apart . 9 BOARD MEMBER WEISMAN: I think the issue is not about use particularly, use remains 10 consistent . It may have to do with intensity of use and its reduction. The Trustees are 11 attempting to do something that is environmentally responsible and that essentially improves failing 12 infrastructure . So the question here is, 'what' s before us is whether or not in so doing the ZBA 13 will uphold their right to do that without creating an illegality, or, if so, under what 14 circumstances will it remain, will it continue to be a nonconformity, and just that the degree of 15 nonconformity will be mitigated. ASST. TOWN ATTY. CORCORAN: I think 16 everyone 'is right, our struggle is that we have to deal with the words that are in the code . 17 BOARD MEMBER DINIZIO : Use . ASST. TOWN ATTY. CORCORAN: The code says 18 such building or use, meaning a 'nonconforming building or use, all these things may not be done 19 to it : Alter, relocate, reconstruct, et cetera, and that leads to the -confusion because how do you 20 reconstruct a use? I don' t know" that you can reconstruct a use . You can reconstruct a 21 building. MR. PASCA: We' re not a building. 22 BOARD MEMBER WEISMAN: ' But a dock is a different structure :. 23 MR. PASCA: Absolutely. ASST. TOWN ATTY. CORCORAN: But the words 24 don' t match up exactly. MR. PASCA: Some words seem to match what 25 you would do to a building: You could enlarge a use, you could alter a use, you could extend a July 27, 2006 66 1 2 use, you can' t really reconstruct a use; so that' s why I agree with you. 3 ASST. TOWN ATTY. CORCORAN: You could reconstruct a dock. 4 MR. PASCA: You can reconstruct a dock, but then we' re getting into parcel and use or 5 structure . BOARD MEMBER SIMON: You can' t move a use, 6 I think Kieran is absolutely right . BOARD MEMBER WEISMAN: I get it . 7 BOARD MEMBER SIMON: We can build a dock someplace else and give it the same use it had 8 someplace else, that' s maybe shorthand to say that' s moving the use, but use isn' t the kind of 9 thing you can move . CHAIRWOMAN OLIVA: Mr. Bressler? 10 MR. BRESSLER: I represent Vic and Mary Zupa . Mary Zupa is the owner of the property in 11 issue . I think we have to focus a little more closely .on what' s actually going on here, and that 12 is 100-241 . Contrary to some assertions it' s not 100-246 , it' s not before the Board. It wasn' t 13 advertised and no interpretation was sought with respect to 246 or any other section other than 14 100-241 . So ,that' s what' s before the Board, that' s Point 1 . 15 Point 2, there' s been a lot of talk about docks or building permits . I defy the Board to 16 read the code and tell me if you think that you don' t need a building permit for a dock. Now the 17 Board is faced with a similar situation with respect to Walz . Twenty-five years of practice 18 was overturned with the stroke of a pen and' a decision. We know what you've been doing down 19 there and it' s not right . Now it seems to me that a dock plainly is subject to the requirements of a 20 building permit . You just have to read the code and look at the definitions . The fact that the 21 inspectors don' t do it means nothing. This Board has the power to say, dock' s a structure, a 22 building, whatever you think it is, but it' s something.. under there and you better go get a 23 building permit . And if these people are really worried about what' s going to happen, go to apply 24 for a building permit . And if they don' t give you one, take an appeal . 25 This is not a generic application. What this is is a pernicious application that has July 27, 2006 67 1 2 invited this Board to at the same time to legislate, which is the purview of the Town Board, 3 and at the same time throw the barn doors open. I 'm going to expand on both of those 4 themes . This is an application that should be deep-sixed and deep-sixed right away before 5 something terrible happens in this town. Why do I say that? It purports to be 6 Town-wide generic interpretation. It plainly is not Town-wide generic interpretation. You only 7 have to listen to your own comments to see that that' s true . Well, we' re not expanding it, maybe 8 we' re getting a boat slip less, and maybe we' re moving it 10 feet one way or another, that ' s the 9 purview of the Town Board. Section 241 is clear and unequivocal on its face . You can' t 10 reconstruct and you can' t move . And let' s not parcel too finely, the use is tied to the dock. 11 Mr. Dinizic added an interesting possibility of having a marina without docks, I don' t think 12 that' s the case here — These two things are inexplicably intertwined. The docks are being 13 reconstructed in another place and they are being torn out completely and reconstructed. As was 14 noted, the purpose of the code is the elimination of nonconforming uses, not moving them from one 15 place to another on a lot, not taking a lot with two houses and tearing one down and building up 10 16 feet away just because it' s a little bit smaller. I could sit up here for hours and go through the 17 variations that could result of the decision that 241 does not mean what it says, which is you got a 18 nonconforming use, the law is clear, you can' t mess with it . If you do, you lose it because we 19 want to eliminate nonconforming uses, that ' s 100-10 says, that' s the purpose of the codes . 20 Now, if some other application is sought for some- sort of relief; which I don' t hear 21 because that' s not why we' re here, from the strictures of 100-241, that' s another question, 22 but that' s not before you. 241 is clear and unequivocal on its face . What we have here is a 23 complete reconstruction of. -a project in a new location on the lot . That' s what you' re dealing 24 with, and what you' re being asked to do is make a ruling saying some way or another those words 'can 25 be read to say it' s okay. But now I ask you, does that mean moving it 10 feet away is okay? Is 15 July 27, 2006 68 1 2 feet okay? Is five feet okay? How are you going to handle that? That' s why that' s a legislative 3 matter. The Board, the Town Board when it passed this law said you can' t do it at all, but maybe 4 this Board has power to grant relief from that in a different context, but maybe it doesn' t, but is 5 a generic Town-wide interpretation you' re now going to rule that it doesn't mean what it says, 6 and on this specific project we' re going to now establish a 10 foot rule? Or because the Trustees 7 think it' s better, we' re going to allow you to place it in a new location and rebuild it 8 completely, when under the law as promulgated by the Town Board, you' re not supposed to be doing 9 that? The answer is you can' t do it without some other kind of relief . You can' t do it . It' s not 10 a generic interpretation because if it were we wouldn' t be arguing about whether this is the same 11 size, whether it' s three slips less, two slips more, whether it' s 10 feet away, 15 feet away; 12 that doesn' t come before you, because that' s fact specific, and the fact that the association came 13 before the Trustees and asked we want to rebuild in-place/in-kind, that' s what they asked for, 14 that' s what they wanted. As a result of various gyrations, a permit was granted. They don' t have 15 to build that . They don' t have to .do it . If the determination that it' s preexisting nonconforming 16 stands, they have every right to keep it there, they don' t have to build a new configuration. .17 Nobody' s forcing them to do it, and they would take the position that any order by the Trustees 18 ordering them to remove it is illegal because it' s preexisting, nonconforming because you said so . 19 This is a very peculiar procedural position they find themselves in. They want their 20 cake and they want to eat it too . Now, I will note on another matter, the 21 matter of whether or not this is preexisting, nonconforming did go to the appellate division and 22 they issued' a decision, and they declined to pass on whether those docks are legal, and sent the 23 matter back, said it' s in front of Judge Weber for determination on that issue . To that extent, that 24 issue remains open and we' re going to be litigating the legality of the docks and I have 25 attached a copy of that decision for your consideration. July 27, 2006 69 1 2 So, again, factually, there are a lot of issues as to whether or not those docks ultimately 3 are going to remain. But the gist of the first point is, this is not a generic application. This 4 deals with this particular case . Trustees were forthright enough to note, we' re not aware of 5 anything else like this, never had an application like this before . But if you make this 6 application and you grant it then it' s not just docks, it' s houses, it' s everything because you 7 can' t read the language of 241 to apply to docks only, it' s 'a Town-wide application, that' s the 8 problem with an application like this . You'.re going to end up legislating, and then you' re going 9 to end up having so many cases involving what' s preexisting nonconforming and what isn' t and what 10 you can do and what you can' t do, and maybe if you cut -it down that' s okay, because you' re trying to 11 minimize the environmental impact . If the Town . Board had said that that' s one thing but they 12 didn' t . The second point is the generic 13 interpretation your forms require that it be disclosed where is the vagueness or uncertainty or 14 the lack of clarity. There is no vagueness or none is alleged in the application and none is set 15 forth. This is simply a case of people asking for what they want, 241 it is clear and unambiguous; 16 you can' t reconstruct a nonconforming use . That is exactly what the Trustees said was going to 17 happen. In fact, they called it new construction. That you cannot do. And for this Board to engraft 18 an exception and say; well, yeah, except the code says you can do it in a certain circumstance, it 19 just doesn' t say that, and I don' t think any of you would take the position that that is ambiguous 20 or unclear, nor is moving it to a different location, the use is tied to the docks. They' re 21 moving them, someone' s going to have to bless that and not in a generic Town-wide application. The 22 purpose of the law is when those docks exceed their useful life like any other nonconforming 23 use, they fade away because that' s what the town wants to happen here . Why this should be 24 different from any other nonconforming use that fades away when its useful life is expended, we 25 have heard nothing. BOARD MEMBER SIMON: I would like to ask July 27, 2006 70 1 2 is your interpretation that you should not be allowed to repair a nonconforming dock? 3 MR. BRESSLER: That' s a fair question, my position that Section 241 is; if you turn to 241, 4 is very clear you can' t enlarge it, you can' t alter it, you can' t extend it, .you can' t 5 reconstruct it, ' you can' t restore it or place it on a different portion of the lot or parcel of 6 land to occupy the use . Nor can you move to another location your use would be nonconforming. 7 Then you go to F, shall not be repaired or rebuilt unless the use is changed to a conforming use if 8 the nonconforming use is damaged by fire or other causes to the extent of 50 percent of its fair 9 value . Those provisions address your question and whichever one your question falls into is where 10 the answer is . BOARD MEMBER SIMON: You' re saying there 11 are serious limitations on repair, reconstruction and repair? 12 MR. BRESSLER: Absolutely. BOARD MEMBER SIMON: To use your analogy 13 with other structures -- houses, presumably you would say the same thing, that you shouldn' t be 14 able to reconstruct or repair a nonconforming house if it' s more than 50 percent . 15 MR. . BRESSLER: If it' s damaged by . fire, if it otherwise falls within the code . But what you 16 have here, they' re going to tear it out completely and put it someplace else . That is not what is 17 contemplated by that section because that' s not what it says . If they had come and said, we want 18 to repair it in-place, I guess we' d have a different application, and we' d be arguing about 19 50 percent, but that' s not before you, we want to uproot it build it anew and put it someplace else . 20 BOARD MEMBER SIMON: Would it be different if it were moved as houses sometimes are moved 21 physically? MR. BRESSLER: I don' t think you could do 22 it . BOARD MEMBER SIMON: I mean if it could be 23 done, just as a matter of how to interpret the code . . 24 MR. BRESSLER: I mean legally, don' t think you can do it because it says you can' t put it on 25 another location that' s not conforming. BOARD MEMBER GOEHRINGER: Mr. Bressler, July 27, 2006 71 1 2 we've done it for a long time . It' s been done . I don' t think you have to continue this debate, and 3 I ' m trying to tell you that it'.s been done . If you have a house that' s on a cliff and it' s 4 falling .off the cliff, and they come before the Zoning Board, we've done it, we' ve done 5 everything,' everything that has encompassed that entire section. 6 MR. BRESSLER: And my question would be upon what basis have you done that? 7 BOARD MEMBER GOEHRINGER: Because more than 50 percent of it was still existing. 8 MR. BRESSLER: Have they come before you on a Town-wide generic interpretation? 9 BOARD MEMBER GOEHRINGER: Absolutely not . MR. BRESSLER: Absolutely not, and that' s 10 my point here today. On a Town-wide, generic interpretation you and the Board would not have 11 the ability to do what you did have the ability to do in any individual case . That' s one of the 12 evils with this application before you. You obviously want the ability to look at any 13 particular instance on its facts, which is not what' s presented to you today. What is presented 14 to you today is something Town-wide, far-reaching that will encompass everything under every 15 circumstance and that' s not appropriate . I ' m trying to answer Mr. Simon' s questions, I'm trying 16 to focus on that very fundamental and distinct difference that flows between what you, 17 Mr. Goehringer, posited, which is obviously true there are cases like that, but this case is not 18 that case . The case that' s before you is for the Town .Board to legislate and to say, okay, we' re 19 going to change the rules . The rules are you don' t need to come into the Zoning Board on an 20 individual basis if you' re looking for relief . The rule is as long as you' re within 10 percent 21 we' re going to let you do it or so many feet or whatever. What you' re being asked to do goes far 22 beyond that, and that I think is the point of the application. The implications, as I said, are 23 just legion. The proximity, the distance away, the reconstruction, all these issues are not 24 appropriate under this particular application. They' re essentially asking you to legislate and 25 rewrite the law rather than deal with a particular case on whatever merits it may have . And, of July 27, 2006 72 ' 1 2 course, in the cases that you posited Mr. Goehringer, there were specific facts set 3 forth, the economics were given to you and the Board made a decision after reviewing the nature 4 of everything specific on that project that came to bear. If it would be a use variance,. they 5 would have to meet the use variance standards, for example, and area variance, they' d have to meet 6 area variance, none of that' s before you today.. You don' t have that ability or opportunity to 7 fashion anything on a Town-wide basis . That is the problem. 8 As far as the preexisting, nonconforming, the already mentioned what the status 'of that is, 9 that' s still up in the air, it' s being litigated in front of Judge Weber. As far as the 10 involuntary move goes, that was not advertised, that' s not before the Board. I would say this 11 move is not involuntary, it' s not a condemnation. They have not been ordered to move the docks . 12 They were given a permit to put_ the docks someplace else, they can leave the docks right 13 where they are . You say then we can' t dredge, well, then challenge that determination. Zupa 14 went in to try to dredge got a DEC permit, the association said, no, we don' t want you to dredge, 15 Trustees wouldn' t give us a permit, so guess what, we didn' t dredge . This is not involuntary. They 16 haven' t been ordered to do it . In fact, Trustees can' t . They have every right to maintain if this 17 Board is correct that it' s preexisting, nonconforming, they have every right to maintain 18 it , and there' s nothing anybody can do about it . ASST. TOWN ATTY. CORCORAN: The Trustees 19 have expressed an intention to issue a violation if this is not conducted; isn' t that right? 20 MR. BRESSLER: I don' t know what they' re going to do, but if someone has a preexisting, 21 nonconforming dock, then my position would be if I were wearing their hat, go ahead, violate me, 22 you' re going -- ASST. TOWN ATTY. CORCORAN: Not to 23 complicate the issue, but something can be preexisting, nonconforming as to zoning, but not 24 preexisting and nonconforming as to the Trustees . MR. BRESSLER: Trustees? The claim was 25 made that they were preexisting, nonconforming, they made it to the Trustees . If there' s a July 27, 2006 73 1 2 concession that they' re not preexisting, nonconforming as to the Trustees, then I guess we 3 don' t need to go any further, they better take these things out . 4 ASST. TOWN ATTY. CORCORAN: I don' t think you or we can concede anything on behalf of 5 somebody else, but I think the Trustees have issued a permit and they have expressed a 6 willingness to have the applicants comply with that permit and reserving their rights to seek 7 enforcement of that . My question is geared at , maybe you don' t concede that that' s the case, but 8 would those circumstances qualify as an involuntary move under 246? 9 MR. BRESSLER: Absolutely not . That permit was not challenged in any way, shape or 10 form. The association had every intention of trying to do what they had to do until Mr. Pasca 11 said that they found out that maybe they couldn' t do it . Well, that' s not this Board' s problem. 12 What this Board has before it is an application for a Town-wide interpretation of 241, not 246 . 13 ASST. TOWN ATTY. CORCORAN: I understand' but the Board in looking at 241 can be guided by 14 the relevant sections, which 246 speaks directly to what -- 15 MR. BRESSLER: No, that calls for a separate interpretation. 16 ASST. TOWN ATTY. CORCORAN: I don' t know about that . 17 MR. BRESSLER: If there' s an interpretation of what has happened here falls 18 within 246, which was not advertised -- ASST. TOWN ATTY. CORCORAN: We' re asking 19 your position right here today on it . MR. BRESSLER: No . That is inadequate as 20 a matter of law and you know that . ASST. TOWN ATTY. CORCORAN: You can make 21 that argument, but I'm asking what' s your position. 22 MR. BRESSLER: This was advertised as an interpretation of 241 and we' re here . If the 23 Board examines the permits, and look's at them, there was a permit issued for something, and they 24 choose not to do that, and they have taken the position that they predate everything, then they 25 should be stuck with that position. But the relief they' re requesting from this Board is far July 27, 2006 74 1 2 too broad, and it' s in the wrong context . And the upshot of all this is if this Board says, yes, 3 this can be moved to .another part of the property, that' s what 241 says, yes, they can reconstruct 4 the entire thing, that is going to have the effect of depriving Mary Zupa from now until forever of 5 the ability to use that property. The preexisting use will never expire . That' s the practical 6 effect of this . If this Board rules that reconstruction is fine in any location then this 7 preexisting use would never expire . Nor will it ever expire in any preexisting circumstance when 8 somebody comes back in and quotes this rule . That' s the problem of what' s before you today. 9 I ' m not going to speak of what may come before you in some other context in some other way. 10 Mr. Goehringer points out that lots of things come before the Board in lots of different ways, but to 11 do what you' re being asked to do today, being asked to do, is not the right way to go on this 12 particular application. Unless and until there' s something before you that reflects all the facts 13 and lays out the basis for this determination, we urge the Board in the first instance to just 14 reject it out of hand, it ' s not generic, and if he .chooses not to do that, to deny this and say it ' s 15 plain on its face, and if there' s relief to be had the relief has to and from someplace else because 16 we' re not going to mess with 241, that' s for someone else . 17 CHAIRWOMAN OLIVA: Is there anyone else that would like to , speak? 18 MR. BRESSLER: I 'm handing up to the Board a copy of my argument . 19 MS . MESIANO : My name ,is Catherine Mesiano, and I 'm appearing on behalf of Mary and 20 Vic Zupa . The package that I have just presented you I hope will add a little clarity, if not give 21 you more food for thought . I would like to focus very specifically on 22 one of the most basic issues of the question that was presented to the Board, and I think the second 23 or third word in the sentence refers to a legal preexisting, nonconforming use . In studying the 24 code, and then going back and carefully studying historic documents, aerial photographs, which I 25 have handed the Board, I have a series of photographs, the earliest being 1954 and the most July 27, 2006 75 l 2 recent being 2000 , and along with my letter, I have .included a synopsis of the photographs that 3 you have in your possession. And very basically, I think these photographs demonstrate that the 4 docks that are being discussed were not in existence at the time of the implementation and 5 the effective dates of the code . If the photographs and my explanation and the documents 6 further go to demonstrate the genesis of the dock structures, the later disappearance of part of the 7 , structures, removal of structures, reconstruction. There' s documentation that talks 8 about structures being completely rebuilt, there' s talk about the main dock having been 9 catastrophically damaged in an ice storm, which resulted in its being totally gone from the 10 pictures . I have attempted to attach to each photograph the documentation that predated that ill photograph that explains what was intended to happen and the photograph then illustrates that 12 which was earlier intended. The documents of financial records that refer to payment of certain 13 articles of work, the documents contain board of directors minutes and reports from various 14 committees, the basin committee in particular that refer to plans to build, reconstruct, add new 15 floats, et cetera. There' s a lot of information and I don' t expect you to absorb it all in a first 16 glance, but one of the most important issues I would like to point out is that it' s not until the 17 1962 aerial photograph that for the first time there appears to be a dock structure attached to 18 the property that' s now known as 580 Basin Road. In 1962 that lot as we have today did not exist . 19 All of the land around the basin was commonly owned by an entity. So neither the dock wasn't 20 nor was the lot in existence prior to that . There were no docks at the implementation of your code . 21 I won' t expound on this because there' s ample information and if you have any questions, I ' ll be 22 very happy to answer them in any manner that you would like . A couple other points I' d like to 23 make to the Board, during the course of the application before the Trustees when the 24 association applied for in-kind/in-place replacement, of the docks, the outcome being the 25 Trustees issuance of a permit for an alternative configuration did not result in a lessening of the July 27, 2006 I 76 1 2 environment impact because the square footage of bottom coverage remained essentially the same . 3 The only thing that changed was the overall length of the structure so that it did not protrude into 4 the basin two-thirds of the way across . , The structure was 180 feet in length, and now I 5 believe it' s been brought back. to 80 or 90 feet . But the square footage of the structure is 6 essentially the same as it was earlier. So there has not been a diminishing of the intensity. 7 Mr. Pasca referred to the lack or the loss of a couple of slips . It should be noted as well that 8 the association was looking for permits of 15 or 16 slips when is historically there have only been 9 six to eight boats kept at those docks over the years and that' s been documented. On one 10 appearance, it could take on the face of being an environmentally sound, environmentally 11 conservative thing to do, essentially there was no change in the environmental impact, and the only 12 reason that the number of the slips was reduced was because the configuration was not a 13 well-designed plan, and it was for practical reasons that the number of slips was diminished 14 not because there was going to be less boats because it was going to be more environmentally 15 friendly. I can' t stress strongly enough that I have 16 to go back to the most basic issue in this , question because in my mind the question before 17 you is a hypothetical question because nowhere has . anyone said I can prove to you, I can show you 18 that those docks have been there since the implementation of zoning and that dock has 19 remained there ever since . There is ample evidence in the package I 've given you that they 20 were built, they were completely moved, they were re-moved, reconstructed. Furthermore, there has 21 never been a permit issued by any agency for construction, reconstruction, repair, replacement 22 of any portion of the dock structures . The Trustees were never asked for a permit nor 23 granted. The DEC was never asked for a permit nor granted. I am dealing with the DEC at this point 24 in time . They have asked me for any documentation I can provide them, which I am providing to them 25 as freely as I 'm providing to you. The DEC does not issue retroactive permits as the Trustees July 27, 2006 77 1 2 might come upon with a violation and give them a permit to legalize that structure, that ' s not how 3 the DEC works . And a couple other minor points I would 4 just like to say, I have been dealing with this project since its inception. As early as July 17, 5 2002 , the Trustees have made the comment on more than one occasion these docks are illegal, they 6 need to be out of here . That statement' s been made in my presence at numerous times at numerous 7 inspections before the Board. There' s no doubt about it, this has been a contentious issue . All 8 Vic and Mary Zupa want to do is build a house . They are very willing to enter into negotiations 9 with the association to come up with a solution that gives everyone what they want . It was never 10 their intention at the onset to go in and eliminate the docks . That was never their 11 intention. And just to set the record straight, theirs was not the first shot fired. That should 12 be kept in perspective as well . They are open to discussion. I think that. 13 there are some simpler ways that this could be handled where everyone goes away somewhat 14 satisfied and equally hungry, which I consider to be a successful negotiation, and I; Mr. Bressler, 15 Mr. Zupa, Mrs . Zupa, are open to anyone who would like to discuss the issue, but I. urge you to 16 consider the fact that these are not legal preexisting, nonconforming docks- under any sense 17 of the word. If there are any questions, I ' ll be happy to answer them. 18 Another point, too, the existence of the association docks has caused a situation where 19 Mary Zupa, the owner of 580 Basin Road cannot enjoy a dock of her own because there is not a 20 place in which to put a reasonably constructed, conforming dock structure that will not impede 21 navigation and will maintain satisfactory depths for reasonable, safe and environmentally sound use 22 of a motor vessel . That needs to be taken into consideration also . I won' t expound on .that , but 23 that is another point . If I do nothing else but leave this Board 24 and any other board that I might appear before with the sense that I am a property rights 25 advocate, and over the past four years, I have been quite surprised to see the diminishing of July 27, 2006 78 1 2 Mrs . Zupa' s rights . She has the right to pay taxes; she has the right to the spend money to 3 save the property; she has no other rights . This issue has nothing to do with the construction of 4 her house . She never came to this Board for a variance for a setback. There is no area variance 5 required, and it' s the issue of these docks . If it is the issue of these docks, then consider the 6 fact that they are not legal preexisting, nonconforming structures . They have never been 7 permitted by any agency. They have been worked on blatantly over the past 50 years, 40 years and if 8 you have any questions . CHAIRWOMAN OLIVA: Thank you. 9 MS . MESIANO: Thank you. CHAIRWOMAN OLIVA: Jim? 10 MR. KING: Just a couple of quick comments . It was my understanding that this , the 11 question asked was brought to you folks pertaining to the dock not to every nonconforming thing that 12 exists in town. And part of our permit we issued for the new dock was the removal of an existing 13 fixed dock, it was supposed to be and we issued a permit to Mrs . Zupa for a new dock because that 1.4 old dock was supposed to be removed. Maybe you' re starting to get a feel for 15 what we have been going through for the last four years . 16 MR. ZUPA: I would like to speak also . My . name is Victor Zupa, I am Mary Zupa' s husband. 17 She' s the property owner. We both bought the property, we wanted to make sure the piece of 18 property didn' t merge with our present residence, which is immediately adjacent to it, so we put the 19 property in her name only. Mary and I since the very get-go just 20 wanted to build a house on this property and we told the association from the beginning that we 21 did not want to remove their docks, we didn' t want to have a big hassle, we didn' t want to get before 22 the Town Board, we didn' t want this to be another Miller fiasco . And prior to purchasing the 23 property I did what I thought was a due diligence . I looked at the Town Board records . I saw a 24 Planning Board resolution that said this, along with the Hermann' s lot, which has since been built 25 on, was set off in 1981 as legal lots . I looked at the correspondence when Dan Smith did this . I July 27, 2006 { 79 1 2 looked at the fact that Rudy Brewer represented the present owners, and I thought this was a 3 legitimate reason to apply for a building permit . I saw no possible impediment . to that.. I also 4 looked thoroughly at the ZBA' s files . 'I went through the whole thing, went through Miller' s 5 application, I felt it was somewhat bizarre and the only thing I could figure out is because of 6 neighbors complaining and because he wanted a setback variance, we wanted to build closer to the 7 water than we want to, we remain within all setback requirements, we thought that the basic 8 denial was based on that with some mention of a marina . Nowhere in that decision did I ever 9 see -- and I defy anybody to find the words in that decision that there is a preexisting, legal 10 nonconforming. use . It was not there, that was not an issue . That decision mentioned a marina. It 11 did not mention a preexisting, nonconforming use . Nor have I heard of what the contention is of the 12 date of the so-called marina or the docks or the specific date of the code being relied on by the . 13 Zoning Board or anybody else . I went to the ,Town and looked at the zoning code when it was first ' 14 implemented in 1957 and ' 58 and saw that a marina was not allowed in a residential area. 15 Also, I must mention, when Mary and I had purchased our present residence, when I went down 16 and looked at the property -- we love it in that area, we love where we live now -- I saw a dock 17 out there, and I said what' s there . And the broker said that' s the association dock on the 18 lagoon. I never heard about the marina. I said is there other land for sale here? What about 19 that parcel behind where the dock is? He said, well, that' s a residential lot for sale . That' s 20 what I was told. Out of an abundance of caution before I signed the contract, I then went to the 21 building inspector and looked at the zoning map and I said is there .some kind of anomaly with 22 respect to the fact that. there is an association dock; is this some, kind of different zone or 23 different than residential? And he said absolutely not . It' s a residential parcel, a 24 residential area, residential district . That' s some of the background to this in looking into 25 whether or not we were going to buy this parcel . Mary and I never expected the adversarial July 27, 2006 80 1 2 nature of this proceeding. We never wanted to be involved in the litigation and the disputes and 3 the somewhat offensive reputation that is apparently being spread throughout the town. 4 The application that the association is making has the effect of destroying the feel on 5 this property forever. If they can rebuild the docks, if they can relocate them, then there will 6 never be an end to marina use . And I believe that you don' t have a marina use without a dock. So 7 that' s part of the use . That' s the structure . If it ' s being allowed to be rebuilt, replaced, 8 relocated, then that will last forever on the property. We will never be able to get a permit 9 in accordance with the ZBA' s determination that we either remove the docks or get a variance . I 10 don' t know how you get a variance with respect to somebody else' s use . 11 Now the Appellate Division very carefully I believe said we believe that this is really a 12 Town matter, despite the fact that I may disagree with the interpretation made of 241 (g) as to 13 whether or not variance was required in this situation, whether or not that was applicable 14 here . I believe what the Appellate Division was saying was this is really a Town matter. It ' s up 15 to the ZBA to determine under what circumstances it would like a marina use or any other 16 nonconforming use to continue . So we' re not going to approach that . They' re right, we affirm that . 17 But if you want to remove the docks we' re not passing on that issue because the legality of the 18 docks, i . e . whether there is a legal preexisting nonconforming use is before Judge Weber in another 19 case, continuing litigation. I don' t want to continue -- I know my wife doesn' t want to 20 continue any more litigation, I don' t . And my wife and I have made repeated settlement offers to 21 the association with no reply. There were meetings set up where we asked for another person 22 to be present, and they didn' t want somebody else present . We did that out of an abundance of 23 caution to make sure what we said was accurately reported to others because our first experience 24 with that turned out it was reported different than what we actually discussed during the 25 meeting. Mary and I even went out and hired a July 27 , 2006 81 1 2 different attorney, Tony Tohill, to try and settle this with the association. For two months I hired 3 him to try to talk with the association attorneys to try and settle it . We came up with what we 4 thought was a reasonable solution. We' ll give them a 75 by 75 tract of land at the beginning to 5 which the long dock is attached, they own it , the easements go away on our property. They build 6 their own turnaround on that piece of property, and can have their own parking. Apparently it was 7 rejected. I don' t understand how we can reach a settlement . I guess where we came out , I 'm 8 requesting help from the Zoning Board. The Appellate Division has obviously said, this is a 9 Town matter, and I don' t know where to go with this except to go continue with litigation in the 10 Supreme Court in Riverhead to remove the docks, bring more photographs, bring expert witnesses in, 11 bring neighbors in and bring documents in and continue this ad infinitum. 12 You already had another case with respect to the docks . The litigation that was mentioned 13 is not our option to do willy-nilly. We' re not r grabbing out and trying to create litigation. 14 It' s all as a result of the fact of a situation where it has been told to us that either get rid 15 of the docks or you don' t get a permit . I ask if there' s no variance required, Mr. Dinizio, in this 16 case or they can continue just the use, then how we even get to one of the original alternatives 17 that was expressed in the original ZBA decision to get a variance . I'm kind of confused. To me you 18 don' t have a marina use without having structures or docks . 19 I ' d be willing to answer any questions you have of me . I 've willingly become somewhat of an 20 expert in zoning in particular zoning of Southold. BOARD MEMBER DINIZIO: You mentioned my 21 name so I' ll -- the very beginning of my statement is I don' t believe this application should be 22 before us . I don' t believe we have jurisdiction in making this decision. Beyond that, the rest is 23 trying to figure out what the other side is saying to us, trying to make sense of their request . I 'm 24 not seeing it other than the fact that you could argue use is not the structure, the actual use 25 going on on the property, and the structure is setback. But in any one of those cases, it seems July 27, 2006 82 1 2 to me like we get our direction from the Building Inspector, if the Building Inspector can' t deny 3 these people or hasn' t because these people have not applied for a dock. They have no reason to 4 apply for a dock permit because it' s not required by the. Town, I say we don' t have jurisdiction over 5 any of it . That' s my point from the very beginning. 6 The rest of it is, hey, I' ll give you an opportunity to make your explanation. 7 MR. ZUPA: My opinion may not be accurate, and probably is in conflict with Mr. Bressler' s, 8 but this is an Andros lands, this is Town bottom, the Town owns it, so a tremendous amount of 9 authority has been given to the Trustees with respect to the docks in the bay and that may be 10 different, but if you look at the code, the code gives the right to the construct a dock accessory 11 to primary use, which in the case of a residential district, it' s a residence, you can have a six by 12 20 .dock. I don' t know if you wanted to have a six by 40 dock, do you have to apply for a variance? 13 I would think you would. I would think you have to apply for a permit . 14 BOARD MEMBER DINIZIO: No, you don' t, the Trustees take care of all of that . 15 MR. ZUPA: But that would be the Trustees permit . 16 MR. BRESSLER: Let me address that because I did it before, Mr. Dinizio, and that is if you 17 read the code and you look for something that says docks are exempt from the Building Department and 18 building permits, you won' t find it, you won' t find it . Just because somebody stands up and says 19 you don' t have to do it, and that' s the way we do it , that doesn' t make .it so. Like I said before, 20 25 years of past practice were gone with a stroke of a pen and this Board went shy with that . If 21 something is not being done in accordance with the code, it seems to me if your dock touches and 22 concerns the upland, which it does, is it a safe structure; does it comply with .code? Trustees 23 have nothing in terms of building code, in terms of safety, and suppose that there is a walkway 24 attached to this and it goes over some wetlands and who is to say, if not the building inspector 25 in the first instance, whether or not you are entitled to have this structure on your property? July 27, 2006 83 1 2 There is no exemption. BOARD MEMBER DINIZIO : Exactly my concern 3 as is Walz with you. If we make a decision on this, we are open up, we are legislating. 4 MR. BRESSLER: No, you' re not legislating because the code says you are not to do certain 5 things without a building permit, and the building of a dock falls within those certain things . And 6 I ' m not even going to characterize why the Building Department may or may not do something, 7 but for whatever reason they don' t do it, that doesn' t make it right, and if there is to be a 8 withdrawal -- to turn your question around, you' re not legislating, if the legislators don' t want 9 docks subject to building permits, then they have to say so because they haven' t said that . Clearly 10 it' s a structure and structures require building permits, so take from there . If this Board were 11 to say that somewhere in its deliberations or its decision that that appears to be the case and the 12 Town Board doesn' t like it, let them do something about it . But I think to turn it around, like I 13 said before, this Board is stuck with the language of 241, well, it' s similarly stuck with the 14 language of former Article 100 and former Article 45 as to who does what and what their 15 responsibilities are in the town. If you see they' re supposed to be doing it and they' re not, 16 well, then they' re not and let the chips fall where they may. 17 BOARD MEMBER DINIZIO: The nonconformity part of this is what we can make a decision on. 18 Our code -- 241 says you can' t increase the size, move it, the whole nine yard and we receive those 19 applications all the time, we receive them all the time for relief . 20 MR. BRESSLER: On an individual basis and usually an area variance not a use variance . 21 BOARD MEMBER DINIZIO: That' s what I was getting to with use, the point comes to and if we 22 made a decision, and the only decision I think we can make is to say that, yes, the code applies . 23 MR. BRESSLER: The code says what it says and if you have a .problem on an individual basis, 24 apply for -- I agree with you 100 percent, it ' s a jurisdictional problem, and I 'm not going to say 25 it again. BOARD MEMBER DINIZIO: Thank you. July 27, 2006 84 1 2 CHAIRWOMAN OLIVA: Two minutes, Tom. MR. SAMUELS : The 75 by 75 feet donation 3 of property. to Paradise Association eliminates all this . It will drastically affect the economy of 4 attorneys on the east end. If they don' t accept the 75 by 75 feet piece of land, legalizing the 5 structures and all this nonsense that has gone on here, then I fear for their stupidity because no 6 common sense in them not letting this go ahead. It' s up to you to accept it and get it off 7 your plates . Thank you very -much. ASST. TOWN ATTY. CORCORAN: I dare to 8 speak for the Board when I say the Board would love for this to go away, but we force the parties 9 to give away or force parties to give away or accept property and settle their disputes . 10 MR. DRESSLER: No. You can only make decisions based on what' s before you. 11 MRS . ZUPA: Good afternoon, Members of the Board, I 'm Mary Zupa. I wrote out something 12 because I 'm always very nervous before you, so I will read it . However, before I do read what I 13 have, I wanted to let Mr. King know that, yes, indeed the Trustees did issue a dock permit along 14 with Paradise Point Association to Mary Zupa on 580 Basin Road, however the DEC told' me it was not 15 acceptable because it' s four feet of water and there' s no place for the boat to go . So in other 16 words, I have a beautiful piece of property. which we fully bulkheaded. We pay the taxes and I have 17 zero use . So a lot of 'other people seem to enjoy it , though. 18 My husband and I checked with the Town records before we purchased it . Those records 19 stated it was approved by the Planning Board along with the Hermantz property as a residential lot in 20 1981, in a residential zone and is it taxed as a residential lot . The Millers were denied a 21 setback. variance by the ZBA and the denial said nothing about the words legal nonconforming in it, . 22 which is what Mr. Pasca said about the 1995 ' decision. . The first time legal nonconforming is 23 mentioned is in your decision to me in 2004 . The ZBA has denied me a building permit 24 stating I have to remove the marina. I have been advised by my attorney that obtaining a variance 25 on someone else' s use is not feasible . The association in its request' to rebuild and relocate July 27, 2006 85 1 2 its docks appears to me to have been a request for a variance on my property. And I never signed 3 where says property owner' s permission to apply for permits before Trustees, it' s not my 4 signature . I never signed anything to even go before the Trustees . The Appellate Division 5 stated that it is appropriate for the ZBA to direct the removal of the association' s marinas 6 before it will grant me a permit the Appellate Division has given me its direction to litigate 7 this in a pending lawsuit before Judge Weber, two .sentence decision by them. They would not 8 entertain it, they have given it back to the Town. They want you to act on it . I have been in 9 litigation for four years on issues I have tried to settle with the association four years . Miss 10 Mesiano said I did not fire the first shot, they sued me first . 11 The Association could have continued use of the docks within reasonable use with my 12 blessings, if they had not objected to my house . I have made repeated proposals, many of 13 them in writing, but I never received a response from them. I even tried a separate attorney, 14 Mr . Tohill, to see if he could resolve this matter. The offer made in writing in a letter 15 before you was given to the association to give them by the 75 by 75 tract of land at the 16 beginning of my property to- which their large dock is attached. This can be used as a turnaround, 17 access to the basin and docks and for parking. The association can then apply for a variance, 18 permits or whatever else it wants based on the ownership of this property. Everyone appears to 19 it think that this solution was a generous offer, however, I hear nothing from the association and 20 litigation I guess will continue. I am asking for the ZBA' s help to resolve 21 this matter, and I 'm not leaving. We' re not moving. We' re not selling the property, we' re not 22 going anyplace . Thank you very much for your time.. 23 CHAIRWOMAN OLIVA: Mr. Pasca . MR. PASCA: I just want to say for the 24 record that a lot has been brought to you in the last hour or so that has nothing whatsoever to . do 25 with the question that is before you, and I don' t want our silence -- because I could go on for two July 27, 2006 86 1 2 or three hours giving you the other side to it -- I don' t want you to think that our silence" is any 3 type of concession that, oh, yes our docks are illegal, or their interpretation of this court ' s 4 decision is correct . We disagree with pretty much 100 percent of what you've heard, but since none 5 of it is relevant to the question before you, I ' m not going to go there, unless you want me to . 6 ASST. TOWN ATTY. CORCORAN: Can I ask one question? What is your position on whether the 7 nature of the preexisting, nonconforming use has been established? 8 MR. PASCA: The decision was made by this Board in 2004 that it was a legal, nonconforming 9 use . Judge Loughlin upheld this Board' s decision in its entirety, as did the Appellate Division. I 10 know they have a different view of a line � in the decision, but you guys have the attorney who 11 represented you on that case, you can ask him what his opinion is . You can ask the Town attorney 12 what their opinion is . Don' t take my word for it or Mr. Bressler' s or Mr. Zupa' s, you have your own 13 attorney in that case, you can decide what it means . 14 ASST. TOWN ATTY. CORCORAN: You' re telling me to answer my own question; is that what you' re 15 telling me? MR. PASCA: Well, I told you what I think. 16 ASST. TOWN ATTY. CORCORAN: I know. MR. PASCA: We think it' s been 17 established. But on top of that, look at the way the question was posed to you by the Trustees, I 18 didn' t word this question. I didn' t make the request . It says "where there is a legal 19 nonconforming use, " et cetera, et cetera . It doesn' t ask you was there a legal nonconforming 20 use . The question presupposes that, there was . So that' s why we didn' t come here to relitigate the 217 whole thing. We were before -- at least a couple of you were on the Board back then when' we went 22 through the history of the zoning code from day one to present . We have been there before . We 23 don' t think it' s appropriate to relitigate it when it' s not the question that' s posed to you . So I 24 think I answered your question. ASST. TOWN ATTY. CORCORAN: You did. 25 MS . COLLIER: Andrea Collier, I live in Paradise Point on the basin, I ' m two lots adjacent July 27, 2006 87 1 2 to their home lots . I'm very happy to hear today for the first time in five years somebody saying 3 that they were just redefining the situation as community docks because myself, my husband and 4 other people on the basin were a little shocked when it went from association docks to a marina . 5 I don' t know where that came from, and I 'm happy to hear that it' s being discussed as community 6 docks separately from a marina because we never had any notice that it was being becoming a marina 7 in a residential neighborhood. BOARD MEMBER GOEHRINGER: It never will 8 either. MS . COLLIER: I 'm happy to hear that, it 9 brings a lot of relief ,because without any notice to the people that live there it didn' t make any 10 sense . And the other thing -- now I 'm nervous too, so I am forgetting what I need to say. 11 I want to ask a question just from reading your Zupa decision, if the Zupas get a variance 12 for the community docks, can they build? CHAIRWOMAN OLIVA: Build what? 13 MS . COLLIER: . Can they build their home? Because it doesn' t really say that they' ll get 14 their variance . If they get a variance for their docks, will they get a variance -- 15 ASST. TOWN ATTY.. CORCORAN: They' re not seeking a variance for the docks . I think the 16 prior ZBA decision stated that either one of two things needed to happen, the docks needed to be 17 removed as a use or I think implicit was that the parties would apply together for a variance so 18 there could be two uses on the one property MS . COLLIER: Apply together? 19 ASST. TOWN ATTY. CORCORAN: That' s ..the way I could see that it could happen. But if you have 20 other solutions . To me if both parties agree and came in and applied for a variance to allow two 21 uses on the property, a home and the docks, that this Board would entertain it . And that was what 22 the Board posited as- one of the solutions . MS . COLLIER: And just as a property 23 rights advocate, I 'm not taking sides on this comment, but I think if there were conditions 24 given on their building application, one shouldn' t be taken away, that makes me really nervous as a 25 property owner. I just really need to say that . I know I 'm going to make people angry, but if you July 27, 2006 88 1 2 give them' a condition it can' t be fake . Thank you. 3 MS . MESIANO : I have one very brief final comment . Your decision, your last decision, if I 4 recall correctly, said that you would issue a building permit on the condition that the docks 5 were either removed or made legal; please tell me what is the mechanism for Mary Zupa to remove the 6 docks if all else fails and they cannot be deemed legal? 7 ASST. TOWN ATTY. CORCORAN: It' s up to you guys to figure out who has the ability to remove 8 the docks or whether they will stay. That' s what you' re fighting over I understand in the courts, 9 in several different courts . MS . MESIANO: It was this Board' s 10 condition. ASST. TOWN ATTY. CORCORAN: This Board .I 11 think decided one of two things had to happen, you - either had to get a variance for a second use or 12 in order to build the second use either get a variance or eliminate the first use . If you don' t 13 have the ability to eliminate the first use then you can' t have a second one . 14 MS . MESIANO: That' s not what it said. MS . COLLIER: Can we hear an 15 interpretation of the appeal from Mr. Isler? ASST. TOWN ATTY. CORCORAN: That' s not 16 what we' re here to discuss for today. MS . COLLIER: It' s just confusing. 17 MS . MORTIMER: Hi, I 'm Donna Mortimer, property owner at Paradise Point . 18 MR. MORTIMER: Just very briefly, there' s been a couple of allegations brought forth about 19 the value that' s enhanced, the property because of the docks, and it' s certainly untrue because 20 historically there' s only, been about eight boats ever at the docks . Anybody that owns a dock in 21 that basin is certainly harmed by that dock. So if there are over 20 people that live at Paradise 22 Point and only eight boats ever there, one-third or so can only be enhanced. And certainly other 23 people are harmed. There' s also been statements ' made about the docks being reduced in size, I 24 don' t think you can take much effort to look at that drawing and say that this dock has not been 25 reduced in size at all . You may say it' s been reduced in square footage because a finger went July 27, 2006 89 1 2 from six feet wide to three feet wide, but it also went to 20 feet long. We -- I also feel that this 3 dock as proposed by the Trustees doesn' t really conform to the :one-third rule . I believe the 4 one-third rule includes the vessel dimensions, which are in no way indicated on that drawing. , I 5 also believe that it also extends further than one-third, as it is indicated on the drawing. I ' m 6 not saying that somebody shouldn' t have a dock there, but I think it should conform, and I am 7 surprised that this whole discussion has been about Paradise Point when you' re commissioned only 8 to discuss a Town-wide decision. So it shouldn' t have anything to do with this specific case unless 9 you' re going to discuss 20 other cases, and I'm surprised at that . ' I don' t think any decision 10 should be made . Thank you. CHAIRWOMAN OLIVA: Thank you. Is there 11 anyone else who. would like to comment on this application? If not, I' ll make a motion to close 12 the hearing and reserve decision until later. (See minutes for resolution. ) 13 (Time ended: 3 : 10 p .m. ) 14 15 16 17 18 19 20 21 22 23 24 25 July 27, 2006 90 1 2 3 C E R T I F I C A T I O N 4 5 I , Florence V. Wiles, Notary Public for the 6 State of New York, . do hereby certify: 7 THAT the within transcript is a true record of 8 the testimony given. 9 I further certify that I am not related by 10 blood or marriage, to any of the parties to this 11 action, and 12 THAT I am in no way interested in the outcome 13 of this matter. 14 IN WITNESS WHEREOF, I have hereunto set my 15 hand this 27th day of July, 2006 . 16 17 rJ 18 19 Fl rence V. Wiles 20 21 22 23 24 25 July.. 27 , 2006