HomeMy WebLinkAboutZBA-01/25/2007 Hearing 1
2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
COUNTY OF SUFFOLK - STATE OF NEW YORK
3
4 ---------- ----------------------------------X
5 T O W N O F S 0 U T H O L D
6
7 Z 0 N I N G B 0 A R D O F A P P E A L S
8
9 --------------------------------------------X
Southold Town Hall
10 53095 Main Road
Southold, New York
11
January S, 2007
12 9 :30 a.m.
13 Board Members Present
14 JAMES DINIZIO, Chairman
15 RUTH OLIVA, Board Member
16 GERALD P. GOEHRINGER, Board Member
17 LESLIE KANES WEISMAN, Board Member
18 MICHAEL SIMON, Board Member
19 LINDA KOWALSKI, Board Secretary
20 KIERAN CORCORAN, Assistant Town Attorney
21
22
23
24
25
COURT REPORTING AND TRANSCRIPTION SERVICE . (631) 878-8047
1
2 CHAIRMAN DINIZIO: Good morning. The
first hearing is for Kevin and Lesley Milowski,
3 Number 5987 . A variance is requested under
Section 280-14 based on the Building Inspector' s
4 September 15, 2006 Notice of Disapproval
concerning a proposed addition to the existing
5 single-family dwelling at less than the code
required minimum 60 feet from the front yard lot
6 line, at 1371 Cox Neck. Road, Mattituck.
It appears to be an existing setback of 52
7 feet; is that correct? Is that correct, the house
is already built?
8 MR. MILOWSKI : It' s 53 . I think that was
the- code setback when I built the house.
9 CHAIRMAN DINIZIO: The house exists
basically. I'm trying to establish that the house
10 is already there. One of your .plans said 52,
which is fine, and you' re asking- for 30 feet?
11 MR. MILOWSKI: Actually, that setback line
when we built the house, I didn' t realize it but
12 it would be considered the side yard, if you' re
looking at the house, and never realized that it
13 was the front yard. And I had a similar situation
when I put the pool in the back, and Victor
14 Lasarde was the Building Inspector in the town and
allowed me to do a pool because it was in my side
15 yard. That' s when I realized that' s the front of
my house, okay, that' s the front of my house, the
16 side of my garage and that was approved by Victor
then. So then I was told that I had two front
17 yards .
CHAIRMAN DINIZIO: Could you come up and
18 stand at the podium, and you are Mr. Milowski?
MR. MILOWSKI : Yes .
19 . CHAIRMAN DINIZIO: Basically, I mean I see
this now as 51. 6 feet existing and you' re asking
20 for 30 . Now, the notice of disapproval says
approximately 30 . So, if we grant 30 feet, you
21 will have to live by that.
MR. MILOWSKI: Right.
22 CHAIRMAN DINIZIO: Michael, do you have
anything on this?
23 BOARD MEMBER SIMON: Not at the moment,
Jim.
24 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER': Kevin, is this a
25 one-story garage or two story?
MR. MILOWSKI: It' s a one story. It' s a
COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047
2
1
2 one story with a storage space. It' s not a full
two story or whatever.
3 BOARD MEMBER WEISMAN: We have the
plans .
4 BOARD MEMBER GOEHRINGER: I just didn' t
know if you modified it in any way between now and
5 the time --
MR. MILOWSKI : It' s the same. I think it
6 was the same height as the existing garage that' s
there now; it' s just the gable' s turned because
7 there' s a height on the building plan.
BOARD MEMBER GOEHRINGER: The only reason
8 I asked that question is sometimes it' s easier to
encapsulate everything in the decision even though
9 it' s attached to the house.
BOARD MEMBER WEISMAN: The section will
10 probably call it out. I can extrapolate it, this
is to scale. I' ll measure it when I write the
11 finding so we know exactly the height. It' s not
called out on here. It may be in your
12 application. I think you just state the same
height as existing.
13 MR. MILOWSKI : Yes., I think it is in the
application.
14 BOARD MEMBER WEISMAN: The garage is
attached and you' re simply going to convert your
15 existing garage into interior living space. I
just wanted to ask you do you think it will be
16 necessary -- those beautiful large pine trees?
MR. MILOWSKI : They' re staying. Actually,
17 my business is excavation and landscaping, and I'm
putting •in more trees .
18 BOARD MEMBER WEISMAN: You're pretty set
back from your neighbor but still they' re
19 beautiful trees .
MR. MILOWSKI : No. I planted those trees .
20 BOARD MEMBER WEISMAN: So you don' t want
to kill them.
21 MR. MILOWSKI : No, I want to add to them;
I want to plant more trees, I don' t want to take
22 any down.
BOARD MEMBER WEISMAN: Okay, I have no
23 further questions . Thank you.
CHAIRMAN DINIZIO: Ruth?
24 BOARD MEMBER OLIVA: Are you going to have
heat in the upstairs of the garage?
25 MR. MILOWSKI: No.
BOARD MEMBER OLIVA: So you don' t mind if
January 25, 2007
3
1
2 we put that in as a condition, no heat?
MR. MILOWSKI : No.
3 BOARD MEMBER OLIVA: No plumbing?
MR. MILOWSKI : No, no, plumbing.
4 BOARD MEMBER OLIVA: It' s a nice spot.
BOARD MEMBER WEISMAN: beautiful .
5 MR. MILOWSKI: Thank you.
CHAIRMAN DINIZIO: Okay, I guess that' s
6 all we have. Do we have anything else to add?
I' ll ask if anyone in the audience would like to
7 speak for or against this application? If not,
I' ll make a motion to close the hearing and
8 reserve decision until later.
(See minutes for resolution. )
9 -------------------------------/------------------
CHAIRMAN DINIZIO: Next hearing is for
10 Kathleen Bower, Number 5981 . Request for a
variance under Section 280-15, based on the
11 Building Inspector' s September 19, 2606 Notice of
Disapproval concerning an as-built accessory shed
12 located in a yard other than the code required
rear yard, at 12710 Soundview Avenue and corner of
13 Horton' s Lane, Southold.
We heard this application last month, and
14 the applicant was going to come back to us,
restake it and possibly consider moving it back a
15 little bit; is there anyone in the audience that
wishes to testify?
16 BOARD SECY. KOWALSKI: I don' t believe she
came.
17 CHAIRMAN DINIZIO: Have we heard anything
concerning this? I don' t recall seeing any
18 revised?
BOARD SECY. KOWALSKI : I haven' t heard
19 anything and nothing was submitted, so she may
need more time to just move it or stake it.
20 BOARD MEMBER WEISMAN: Nothing has been
done on the site.
21 BOARD MEMBER OLIVA: Nothing.
BOARD MEMBER GOEHRINGER: Nothing has been
22 done, I went too.
BOARD MEMBER OLIVA: It' s there. It' s
23 sitting right on -- the Shady Lane is really
like --
24 BOARD MEMBER SIMON: No, this• is Bower.
BOARD MEMBER WEISMAN: The shed, the blue
25 shed that' s on Horton' s Lane, the carryover, they
were going to look at how much further.
January 25, 2007
4
1
2 BOARD MEMBER OLIVA: I ,didn' t know whether
they were going to -come back this time or not.
3 BOARD MEMBER SIMON: They were going to
explore possibilities for moving the shed. More
4 information as to cost and so on.
BOARD MEMBER OLIVA: They were going to
5 let Linda know when they were ready.
BOARD SECY. KOWALSKI: The Board extended
6 it a month, and I would recommend you extend it
another month or two.
7 BOARD MEMBER WEISMAN: That' s fine.
CHAIRMAN DINIZIO: Okay.
8 BOARD MEMBER WEISMAN: So continue to
adjourn the hearing.
9 BOARD MEMBER OLIVA: Yes, I' ll make a
motion to adjourn the hearing to next time.
10 BOARD MEMBER SIMON: Second.
CHAIRMAN DINIZIO: All in favor?
11 (All Ayes. )
CHAIRMAN DINIZIO: Opposed? None.
12 Motion carried.
-------- -----------------------------------------
13 CHAIRMAN DINIZIO: Since we have time
before the next hearing, do you want to do our
14 resolution for Special Meeting to be held
Thursday, February 8, 2007 at 6 : 00 p.m. Town Hall
15 Annex, North Fork Bank Second Floor, Executive
Board Room?
16 (See minutes for resolution. )
----------------=----------------------- ------- --
17 CHAIRMAN DINIZIO: We' ll make this
resolution for Regular Meeting scheduled for
18 Thursday February 22, 2007, at 9 : 30 a.m. , Town
Hall.
19 (See minutes for resolution. )
- ------------------------------------------------
20 CHAIRMAN DINIZIO: Next hearing is for
Robert and Susan Somerville, request for a
21 variance under Section 280-124, based on the
Building Inspector' s November 15, 2006 Notice of
22 Disapproval, amended January 3, 2007, concerning
proposed additions and alterations to the existing
23 single-family dwelling with a front yard setback
of less than the code required 35 feet, at 595
24 Oakland Court and Shady Lane, Southold.
Apparently the ,requirement of 35 feet,
25 you' re asking for 28 . 8 feet on Oakland Court and
15 .4 feet on Shady Lane; is that correct?
January 21, 2007
5
1
2 MR. LEHNERT: Yes, that' s correct. The
largest part of this variance as you know is on
3 Shady Lane. In the front of the house, actually
on Oakland Court, is an open portico and we want
4 to infill the bottom section of the house. It' s a
high ranch and that' s going to require an inch or
5 two of relief.
BOARD MEMBER OLIVA: What. do you want to
6 do exactly in the back? Because you've got one
like lower and the other --
7 MR. LEHNERT: Like I said it' s a split
level it' s going to be a two-story addition in the
8 back, turning into a one-story addition on the
second level for a new kitchen space.
9 BOARD MEMBER WEISMAN: And an open deck.
MR. LEHNERT: Yes .
10 CHAIRMAN DINIZIO: I just ask that the
Board members take a turn at asking the gentleman
11 questions so he could answer them properly. Ruth,
you could continue if you like.
12 1BOARD MEMBER OLIVA: I just have, .could
you give me the name or the number of your client,
13 he has a pond back there and I'm just interested
in the netting that he uses because I have a koi
14 pond, and it was such a good operation I'd like to
get that.
15 MR. LEHNERT: I could get that for you.
BOARD MEMBER OLIVA: But otherwise,
16 no. Just that your shed, of course, is sticking
out into Shady Lane, which is nothing. more than
17 grass and woods.
BOARD MEMBER SIMON: Who owns Shady Lane?
18 MR. LEHNERT: I'm not sure who owns Shady
Lane.
19 BOARD MEMBER SIMON: It' s a private lane
as opposed to a right of way.
20 BOARD MEMBER OLIVA: It' s a paper road,
you couldn' t even drive through it because the
21 trees are in the way.
MR. LEHNERT: I mean, there is a
22 homeowners association down there. I don' t know
if they own it or if it' s a town owned paper
23 road.
BOARD MEMBER WEISMAN: It would appear
24 that there' s no real access to the water through
that anyway, so probably no one uses it.
25 BOARD MEMBER GOEHRINGER: I'd like to
answer that question. If it does not have a tax
January 25, 2007
6
1
2 number on it, if it is not being assessed, it' s
either an unknown owner or it' s the Town that
3 never has recognized it.
CHAIRMAN DINIZIO: I'd like to ask a
4 question about that, Jerry, perhaps you' ll
know. Should we require them to move that shed?
5 BOARD MEMBER GOEHRINGER: Well, I had
certain reservations about that, Mr. Chairman, I
6 looked at it. I think if the homeowners
association never asked .for it to be moved
7 probably you can say that the shed is
significantly not on the property and that if in
8 the future the shed deteriorates to such a point
it' s got to be moved to a conforming location.
9 That' s one way of addressing it.
CHAIRMAN DINIZIO: That was my concern
10 too. I would like to state in the approval or
nonapproval, however we go, that we do not give
11 any credence at all to the location of that. That
we grant no approval whatsoever.
12 BOARD MEMBER SIMON: It' s not part of the
application.
13 CHAIRMAN DINIZIO: Right. We should
notice that it' s there because it is on our map.
14 We should notice that it' s unusual that it' s there
and we' re not granting anything that says it
15 should be there or not there; is that okay with
you?
16 MR. LEHNERT: That' s fine.
BOARD MEMBER SIMON: I believe just to
17 amplify that a little bit. I'm not sure it' s our
jurisdiction, conceivably the Building Inspector
18 could very well have noted this and dealt with it.
I'm .not sure it' s appropriate for us to call our
19 attention to something that the Building
Department never called attention to.
20 CHAIRMAN DINIZIO: My concern, Michael,
was that it somehow gets interpreted by somebody
21 that we granted that shed. I wanted to avoid that
because my first inclination was to actually write
22 a letter to the Building Inspector and say, here' s
the shed, what do you think about it? I mean, the
23 applicant certainly is admitting that it shouldn' t
be there and he doesn' t own that land, and I don' t
24 know if it' s true. Maybe we should be writing the
letter, but I offer that as a solution for us to
25 recognize that it is there and we don' t think it' s
legally there.
January 26, 2007
7
1
2 BOARD MEMBER WEISMAN: I think that' s
reasonable. I wouldn' t actually intervene if its
.3 preexisting nonconforming. ' I don' t know if it' s
preexisting; it 'probably isn' t. But it' s a
4 nonconforming structure and it' s certainly having
no impact on anything at the moment. So I think
5 simply noting that we' re not granting approval for
the nonconformity is sufficient.
6 I had a question. You also are going to
create a new portico over the front entrance and
7 it' s called out at 28 . 8 feet, and it' s actually
depth is 7 . 92 feet; it doesn' t say what the --
8 well, you could actually subtract the house itself
is 34 . 9 feet from the road, from Oakland, so if
9 you add -- subtract 7 . 9, you know what the setback
is and what the existing setback is. Are you
10 adding to that because you have steps there now?
MR. LEHNERT: We' re tearing those steps
11 down and putting that portico in place.
BOARD MEMBER WEISMAN: But it' s not going
12 to be any closer to the road than what it is now.
BOARD MEMBER WEISMAN: How much closer?
13 How much closer will it be because that has to be
in the findings?
14 MR. LEHNERT: I'm guessing from the old
one about three feet closer and the existing steps
15 come out past the front of the house.
BOARD MEMBER WEISMAN: That' s what I mean,
16 yes, because it' s not clear what the difference
between what' s existing and your additional number
17 of feet.
MR. LEHNERT: I can give you those
18 numbers.
BOARD MEMBER WEISMAN: That would be
19 helpful so they' re entered in because we need to
indicate how much variance on that front yard
20 variance we' re granting you.
BOARD MEMBER GOEHRINGER: It may or may
21 not be in my draft, so you may have to enhance the
draft. The draft will be done tomorrow night
22 prior to my leaving.
MR. LEHNERT: I can update the drawing and
23 drop it off to the office tomorrow.
BOARD'MEMBER WEISMAN: Fine. Is that all
24 right, Jerry?
BOARD MEMBER GOEHRINGER: Assuming I get
25 it, I don' t mean that sarcastically.
BOARD MEMBER WEISMAN: As long as we have
January 215, 2007
8
1
2 that information.
BOARD SECY. KOWALSKI : If it' s part of the
3 record we add it in the final.
BOARD MEMBER GOEHRINGER: Right.
4 CHAIRMAN DINIZIO: Anybody else have
anything to ask? Michael?
5 BOARD MEMBER SIMON: No.
CHAIRMAN DINIZIO: Jerry?
6 BOARD MEMBER GOEHRINGER: Yes, I propose
hay bales during construction, which is a normal
7 situation on 'the water.
MR. LEHNERT: We have the DEC and the
8 Trustees .
BOARD MEMBER 'GOEHRINGER: That will be
9 embodied within one of the conditions?
MR. LEHNERT: It' s already in one of the
10 conditions of the previous .
CHAIRMAN DINIZIO: It' s also well noted
11 that the Trustees have required dry wells and that
will be part of ours . Okay, if no one has any
12 further questions, I' ll make a motion to close the
hearing and reserve decision until later.
13 (See minutes for resolution. )
---------------------------------------------- ---
14 CHAIRMAN DINIZIO: Next hearing is for
Fidco. Request for a special exception, based
15 upon Code Sections 260-48 (b) 6 and (b) 8,
concerning a proposed conversion of the existing
16 building to recreation facility and nonprofit
meeting hall, in this B General Business Zone
17 district. Location of property: Fox Lane,
Building 98 and Greenwood Road, Fishers Island.
18 Is there anyone who wishes to be heard? Yes, sir,
can you state your name?
19 MR. SPOFFORD: My name is John Spofford.
I am the president of the Fishers Island Civic
20 Association, which is the builder/operator of this
center. We're a Type B New York State
21 corporation, and we' re not-for-profit under the
IRS regulation 513B, recognized as a public
22 charity. And I sent you; not with all these other
papers, but a fund-raising booklet.
23 BOARD MEMBER OLIVA: It' s beautiful .
BOARD SECY. KOWALSKI: Thank you, we saw
24 it yesterday.
MR. SPOFFORD: If you have any questions,
25 I would be happy to answer them as far as the
nature of the project -- and any building
January 25, 2007
9
1
2 questions .
CHAIRMAN DINIZIO: When I went through
3 the file, it seemed to me like you' re going to the
Planning Board and all nine yards and it seems to
4 me like you have. permission to use 40 spaces from
your neighbor I guess for parking, it' s a
5 consideration?
MR. SPOFFORD: Actually it' s a slight pick
6 up in that, we did send out all the return receipt
requested, all that stuff, and we were supposed to
7 send the things over here and unfortunately the
postal service between Fishers Island and Southold
8 is somewhat problematic and they were returned to
us last week, something to do with the post office
9 box.
BOARD SECY. KOWALSKI : You have to do the
10 PO Box and the whole zip code otherwise they won' t
deliver it to us.
11 _ MR. SPOFFORD: You know more about that
than I simply do, but we did fax all the receipts .
12 CHAIRMAN DINIZIO: Okay. So we don' t
know if we have the notices.
13 BOARD SECY. KOWALSKI : They also agreed to
send them. overnight, the original set.
14 MR. SPOFFORD: The faxes of the original
receipts and the affidavits, all _those will be
15 faxed to your office.
CHAIRMAN DINIZIO: We should be able to
16 tell by the dates. So, I' ll ask Michael if he has
any questions?
17 BOARD MEMBER SIMON: My understanding, and
I may be wrong about this, this is the only reason
18 you' re before this Board as well as the other
Board, the Planning Board, has to do with a gap in
19 the town code that doesn' t list this as one of the
approved uses of right because it' s not a
20 commercial building.
MS . RUTHERFORD: It' s zoned as business .
21 BOARD MEMBER SIMON: And because this is
not a business, it' s a question of whether you can
22 - have a nonbusiness.
MS . RUTHERFORD: This particular use --
23 BOARD MEMBER SIMON: I guess it' s a
puzzle, special exception for outside the
24 numerated list.
CHAIRMAN DINIZIO: No, Michael . In our
25 law there are uses, permitted .uses that don' t
require special exception. Then there are uses
January 25, 2007
10
1
2 that require special exception; recreational use
in a B business zone is required on a special
3 exception permit that must be granted by this
Board. It' s in the code.
4 BOARD MEMBER SIMON: I know it' s in the
code. I'm just trying to figure out why the code
5 is the way it is . This is not really relevant to
the application. Our recreation is something that
6 the Town is not sure it wants to allow in a
business district and that' s why they require
7 special exception?
CHAIRMAN DINIZIO: No. From my
8 experience, it is that you try not to use your
limited business space with uses that are not
9 business uses.
BOARD MEMBER SIMON: In other words, if
10 this were privately owned and run for a profit,
there would be no problem.
11 CHAIRMAN DINIZIO: ' Yes, of course, it
would be a business, but it' s not, it' s community.
12 If you guys think you can make a profit at it --
no, but anyway, that' s the reason why. It' s in
13 our code.
BOARD SECY. KOWALSKI: There' s also the
14 other standards for special exception, screening
and buffers, parking,
15 CHAIRMAN DINIZIO: That' s the subject of
this hearing is to insure that you can meet
16 those.
MR. SPOFFORD: Right. And that' s all been
17 done.
CHAIRMAN DINIZIO: I've been through it,
18 it looks like you're applying everything that
needs to be applied for a special exception.
19 BOARD MEMBER WEISMAN: I have a comment I
would like to make. Michael, you're finished?
20 BOARD MEMBER SIMON: Yes .
CHAIRMAN DINIZIO: Hold on, Jerry?
21 BOARD MEMBER GOEHRINGER: I take a more
pragmatic approach, and of course I have
22 absolutely no objection to your proposal, but I
just need to ask the question. Anything innately
23 in the building that would be removed from the '
building that would be construed to be a violation
24 of health, safety and welfare; in other words, is
there asbestos abatement that' s going to be done
25 in the building?
MR. SPOFFORD: Yes . The history of the
January 25, 2007
11
1
2 building is it was put up, we think, in the ' 20s
by the Army. And when they closed down Fort
3 Wright in 1947-48, the buildings there were
essentially stripped, and the only asbestos that' s
4 in there is a very small amount, some pipes that
go one part of the area, but the main heating
5 system was taken out a long time ago, and we have
had a preliminary person come look at that, but
6 that will all be done as far as the project.
BOARD MEMBER GOEHRINGER: So that will be
7 done and once that' s done and the air monitoring
and the removal of that, that will be the only
8 toxicity that would be construed to be in the
building at this time. Because this is a building
9 that' s going to be used no longer as a warehouse,
it' s public use. That' s the reason I'm asking the
10 question.
MR. SPOFFORD: Public use.
11 BOARD MEMBER GOEHRINGER: That' s the
reason I'm asking the question. Is there anything
12 else that you think of that innately would be a
violation of health, safety and welfare of this
13 building?
MR. SPOFFORD: We have to put in two fire
14 escapes for the second floor and all of that.
BOARD MEMBER WEISMAN: And sprinkle.
15 CHAIRMAN DINIZIO: Whatever the code says
it will be required to do, so that' s a building
16 inspector kind of thing.
BOARD MEMBER GOEHRINGER: I'm just saying
17 a special exception deals with health, safety and
welfare and a violation of health, safety and
18 welfare. So I'm only asking the question', again,
I have no objection to this .
19 MR. SPOFFORD: We have been through this
and talked about it with two, three sets of
20 engineers and all that will be taken care of .
CHAIRMAN DINIZIO: Okay, Leslie?
21 BOARD MEMBER WEISMAN: Yes . I just want
to go on the record to say I wish we had this kind
22 of facility on the mainland here. I commend the
architects with very sensitive, adoptive. reuse.
23 The plans are very nicely laid out. It' s
primarily partition walls, some partition walls
24 and just some structural stuff around the elevator
core and stuff like that. It' s very nicely done.
25 And I think it' s going to be a great amenity for
for the community.
January 25, 2007
12
1
2 BOARD MEMBER SIMON: May I ask, where is
the money funding coming from this?
3 MR. SPOFFORD: You mean, where is the
money or how much?
4 BOARD MEMBER SIMON: Not how much but the
sources .
5 MR. SPOFFORD: It' s been all private
individuals and private foundations, and we have
6 raised to date just north of three million.
BOARD MEMBER SIMON: It' s all been raised
7 presumably from Fishers Island residents?
MR. SPOFFORD: And they would be happy to
8 have you participate.
BOARD MEMBER SIMON: Thank you, I
9 appreciate that.
CHAIRMAN DINIZIO: Ruth, do you have
10 anything to add?.
BOARD MEMBER OLIVA: No, I think it' s a
11 wonderful thing you' re doing over there, and I
compliment you on doing it and I compliment all
12 the people that have had that much interest in
doing this. They put their money where their
13 mouth is .
_ MR. SPOFFORD: It' s an odd place and
14 people are really .passionate about it.
BOARD MEMBER OLIVA: I wish we had that
15 here.
CHAIRMAN DINIZIO: I'm going to ask
16 Michael, would it be okay if we moved this
approval or disapproval now, it' s your
17 application?
BOARD MEMBER SIMON: I have no problem
18 with that.
CHAIRMAN DINIZIO: We could grant it now
19 and the gentleman could go home and do his thing.
BOARD MEMBER SIMON: You mean to expedite
20 the process in order to save the two weeks?
CHAIRMAN DINIZIO: We could write the
21 decision when --
BOARD MEMBER SIMON: As long as that' s not
22 in violation of any rules .
CHAIRMAN DINIZIO: I'm not sure it is .
23 BOARD MEMBER SIMON: Do we actually need
any special hearing by law?
24 CHAIRMAN DINIZIO: No. We can make our
decision now, but most of the times the concern is
25 that the person writing the decision hasn' t got
his thoughts together.
January 2.5, 2007
13
1
2 BOARD MEMBER SIMON: Also because this is
the kind of project that is evaluated on the plans
3 we already have rather than on site visits which
none of us probably has made and discussion
4 controversy and all overriding points of view. I
have heard no dissenting opinions which could
5 influence this decision.
MR. SPOFFORD: Have any of you been in the
6 building?
CHAIRMAN DINIZIO: No, I have been to the
7 building.
MR. SPOFFORD: The last two years we have
8 had the Town engineer, I don' t know, a bunch of
people.
9 BOARD MEMBER OLIVA: Jamie Richter.
CHAIRMAN DINIZIO: Myself.
10 BOARD MEMBER OLIVA: We were so busy
looking at other things we didn' t even get lunch.
11 CHAIRMAN DINIZIO: Actually, I discussed
it with the Town engineer while we were over
12 there. So I'm going to entertain a motion that we
grant the special permit as applied.
13 (See minutes for resolution. )
---------------------------------------------- ---
14 CHAIRMAN DINIZIO: We have about three
minutes to the next hearing. Maybe we could just
15 discuss the open meeting memo that I passed out at
the last meeting. I got all your replies and they
16 all seemed to go right onto the way I thought
about it. I think that it' s certainly, if you
17 read the whole thing it sounds kind of Draconian,
and there are some things, being a small community
18 you' re not going to be able to apply, but I would
like for us to always keep that memo in mind as
19 we' re going about our business during the course
of our inspections and things like that.
20 BOARD MEMBER OLIVA: Jim, I think the last
page really summarizes it really well, the fourth
21 one seems to encapsulate it, doesn' t seem quite so
Gestapoish, and it says the same thing
22 basically.
CHAIRMAN DINIZIO: Yes . So I think my
23 concern basically is that we don' t, we insure that
the records is created in public. I want to go a
24 little further than that in a couple of months .
You know, that we give the applicant the
25 opportunity, every opportunity to hear what we
have to say, what our opinions are at the public
January 25, 2007
14
1
2 hearing. I am trying to work on perhaps having
someone from the building inspector, perhaps a
3 person who actually does the notice of
disapprovals come here during our meetings to
4 explain the notice of disapproval. I think that
it will help clarify the application to the
5 audience and to us . In the past it' s been like
perhaps the applicant has been looking at -- how
6 do I .say this gently -- he thinks he submitted all
the information he needs and suddenly he' s being
7 asked for more without the benefit of a reason
why. And I just want our Board or our- members, if
8 they want more information that that information
be sought at the hearing and not during the course
9 of the run up to the hearing. We' ll let the
applicant make their request based on what they
10 wish to submit to us, and we will ask for all the
information that we want in the hearing.
11 BOARD MEMBER SIMON: Doesn' t that raise a
problem for the activities of the office, Linda' s
12 office? There' s a lot of correspondence, a lot of
phone calls that go on between the submission of
13 the application and the meeting because typically
many of them are incomplete in ways that ought to
14 be pointed out before we can review it.
CHAIRMAN DINIZIO: Michael, you' re
15 absolutely right and I'm not speaking to Linda.
I'm speaking to the five Board members . That we
16 don' t try to make the record, we let the staff
make the record, and then we base it on whatever
17 they hand to us on the day that we come and give
our questions . And I'm not opposed to, if we
18 think that they need plans or they need something
else that we think has been missed, holding a
19 hearing until they give it to us . I'm not opposed
to any of that but I do think and I have heard
20 that it' s a little bit over the line if a Board
member is putting stuff in the record before the
21 hearing.
BOARD MEMBER WEISMAN: In the file you
22 mean?
BOARD MEMBER SIMON: I wasn' t aware that
23 that happened.
BOARD MEMBER WEISMAN: Who puts stuff in
24 the file prior to the hearing?
CHAIRMAN DINIZIO: I'm not saying that
25 someone' s physically doing that, I'm saying that
when we want something in the file, we' re not
January 25, 2007
15
1
2 going to say, Linda, get this. We' re going to
come to the hearing and we're going to say to the
3 applicant -- and we can agree or not agree --
listen, we need this in order to make a decision
4 or I need this in order to make a decision or --
BOARD MEMBER OLIVA: But Linda already has
5 a whole list of everything that should be
complete.
6 CHAIRMAN DINIZIO: That' s correct. And
we will use that file that Linda prepares for
7 us .
BOARD MEMBER OLIVA: And she does a good
8 job doing it too.
CHAIRMAN DINIZIO- She does. Any more
9 information that we need in that file, we' re going
to ask during the hearing.
10 BOARD MEMBER OLIVA: I thought we did.
CHAIRMAN DINIZIO: Not before the
11 hearing, during the hearing.
BOARD MEMBER SIMON: Here' s the situation
12 that I could anticipate happening, let' s suppose
25 years from now and Linda has happily retired,
13 and there' s someone working in the office without
the experience and knowledge about all the things,
14 would that person be free to consult with Board
members or take suggestions from Board members,
15 you know, when Linda was here, she always asked
for A, B and C and that' s something that we really
16 should have before we have a hearing. You' re
wanting to rule that out. It' s true, Linda needs
17 none of us, but that' s an unusual situation.
CHAIRMAN DINIZIO: No. I don' t think
18 that' s beyond the scope of what I'm saying. I'm
just saying that if we have information that we
19 are privy to, that' s not in the file already, that
is when we put that in the file it should be
20 during the public hearing. We bang the gavel and
instead of having Linda running around, and we' re
21 asking that be put in the file. Perhaps the
applicant, if we feel we need that to make a
22 decision, that the applicant put that in the file,
that the applicant go and get it. Go wherever
23 they need to go to get the information in order
for us to make. a decision. So when the
24 application' s complete and Linda says it' s
complete, then it gets put on the agenda, and we
25 have the hearing.
BOARD MEMBER OLIVA: That' s exactly what
January 26, 2007
16
1
2 we' re doing.
BOARD MEMBER WEISMAN: That' s exactly.
3 CHAIRMAN DINI'ZIO: I'm just clarifying.
And after that, when that application' s complete
4 and we get the packages and we look through the
package and we think there' s something' s
5 missing --
BOARD MEMBER OLIVA: That' s when we put it
6 down as notes to ask the applicant.
CHAIRMAN DINIZIO: I just want them at
7 the hearing to do that not before.
BOARD MEMBER WEISMAN: You' re basically
8 saying you want to continue.
CHAIRMAN DINIZIO: . I just want to clarify
9 that' s what' s happening.
BOARD MEMBER WEISMAN: Fine, fine. By the
10 way, information gathering has nothing whatsoever
to do with Open Meetings Law. As long as it' s not
11 part of the deliberation.
CHAIRMAN DINIZIO: No, you can gather all
12 the information you would like, I think that
probably you can' t sit with three Board members to
13 discuss that information. But you can come to the
hearing and actually say whatever it is you have
14 gathered, put it into the record.
BOARD MEMBER WEISMAN: Definitely.
15 CHAIRMAN DINIZIO: That' s basically all
I'm asking for. I'm more or less asking that the
16 staff do the gathering of the requirements for the
information, voluntary if Linda looks at an
17 application and sees that they need a variance for
another front yard that that be Linda' s purview or
18 tell the person to go back to the building
inspector and do what they need to do to correct ,
19 that notice of disapproval. Because she can
certainly say which applications are ready and
20 which ones are not. I have asked that if she has
a question, ask me and we' ll make a decision on
21 it. I'm hoping to go in the same direction we
went with the .memo to the Planning Board. We had
22 a discussion on that, we hashed it out and I'm
hoping to go that same way. If it' s not something
23 that we' re putting testifyable information but
rather a procedural kind of thing, should we ask
24 for this now, should we let it go. My tendency is
if Linda doesn' t think it' s ready to go but the
25 applicant insists upon going, the applicant goes .
Then, when they get out .of the hearing, we ask for
January 25, 2007
17
1
2 the information. They have to do what they have
to do. Stop trying to help the applicant by
3 making it worse than it is .
So we can start the next hearing. The
4 next hearing is Sandy Ground, LLC and S . Perry.
Request for a variance under Section 280-18 to
5 reduce a lot to less than 40, 000 square feet in
this R40 Zone, based on the applicant' s submission
6 of an application to the Southold Town Planning
Board under subdivision code Chapter 240 for a lot
7 line change. The proposed lot line change with
increase the improved lot, Parcel 1, located in
8 the Hamlet Business Zone District from 10,498
square feet to 29, 088 square feet, plus 3, 228
9 square feet of area of flag and right of way to
Parcel 2 . And we will reduce the residential
10 Parcel 2 from 49, 967 square feet to 24, 891 square
feet plus 3, 258 square feet of right of way and
11 3, 228 square feet flagged area, also within the
boundary of the parcels. Location of property is
12 57190 Main Road and private right of way. Pat?
MS . MOORE: Good morning, also happy new
13 year. My first time before the Board. I have
Sandra Perry here. You obviously know her
14 business, she has a physical therapy business on
the Main Road. The parcel to the south,
15 surrounding her to the south and west of her piece
was made available and Sandra paid for it, bought
16 it. The goal in that acquisition was to improve
her commercial property and create what would be a
17 lot line change. The existing parcel now was
created and planned with one dwelling. We' re
18 going to keep it as a one dwelling but split the
residential portion of the lot from the commercial
19 portion of the lot by a lot line change. There
are various benefits to that. One is that the
20 residential parcel will be kept totally separate
from the commercial development. Another aspect
21 of it which will be an improvement is that the
right of way which presently is part of the
22 overall parcel will be created as a flag lot and
the access will also be reserved purely for
23 residential. The house to the south uses that
right of way and he keeps it completely separate
24 from the commercial piece.
The third aspect of it will be that when
25 the commercial portion, which actually the zoning
line falls about 200 feet into this parcel --
January 26, 2007
18
1
2 BOARD MEMBER OLIVA: Into which parcel?
:- MS . MOORE: Into the proposed -- what we
3 have as Parcel 1, which will be merged to the
commercial piece, the zoning lines fall --
4 BOARD MEMBER OLIVA: Okay, so you' re
making the commercial one larger, very good.
5 MS. MOORE: Yes . We' re making it all
conforming. So overall we think it' s a good plan
6 and again, when the property became available,
really she didn' t have any choice. Sandra Perry
7 is a very good physical therapist. She does a lot
of good for the community and there' s a need for
8 her services and her business has been very
successful, and we all see that the parking really
9 was necessary. So, when she came to me I said
unfortunately it' s a no-brainer, you have to, it' s
10 something you need to do.
In the creation of this lot line change,
11 we will in fact be making the residential parcels
smaller. When the lot was created, it did account
12 for it had the right of way included in the
acreage and we provided for Linda, I think it was
13 a very good suggestion, a very good request, to
give you the exact square footages of everything.
14 You got it from John. It' s very clear and again
it will be your decision if you thought that the
15 right of way should not be a flag, which I don' t
think that anyone would recommend, but that square
16 footage is provided for. So you have everything
a la carte. All the square footage is provided.
17 MS . MOORE: In the creation of that
residential parcel, in this instance I wish to
18 testify as a property owner in the neighborhood.
I have direct knowledge, I live at 370 Terry
19 Lane. This is my community. So, I swear as an
officer of the court that I will speak honestly
20 with respect to any of the facts here, but what I .
did was I took a tax map. The parcel here,
21 really, the tax map is of this parcel takes in
pretty much the hamlet area. What I did was I
22 took a photocopy of Terry Lane and Town Harbor,
which is really the community. I have three pages
23 for you. I will point out also that on the north
side of Main Road, the first page shows there is a
24 proposed multi-family residential development that
I'm sure you' re aware of. It will be a senior
25 community. Again, I think that those services
will need more services and the services will be
January 25, 2007
19
1
2 even greater. The second page is actually Terry
Lane. Founders is at the end. I pointed out my
3 house. Our neighborhood consists of really
it' s -- I would say it' s 50-50 year round, but I
4 think it' s getting more and more year round. It
has been a well-established community since the
5 170s . Most of the parcels there were created as
500 parcels and then they were sold as
6 double-sized parcels, but they are mostly half
acre lots. The community is a wonderful
7 community, very diverse, people of all incomes and
all areas of business. We have a very diverse
8 community. And I think that the size of the lots,
the development of the area, the homes are modest,
9 some waterfront homes are spectacular, my home is
relatively modest, the third page is Founders, Old
10 Shipyard and Town Harbor, and again, I. would point
out that all these parcels, I believe it' s 100
11 percent of that development, is half acre in size
if not smaller. So, the parcel that we are
12 proposing is really consistent with the community.
It also would be a difficult parcel to develop as
13 a new zoned parcel because you inevitably have to
develop something that would be a multifamily,
14 commercial mix; that' s not what Sandra needs;
that' s not what she wants. And it really will
15 lead to more density I think than what she' s
proposing. What she' s proposing is a professional
16 office for her use in her office and a single
family develop dwelling behind. That' s the
17 character of our area. Also keeping in mind the
larger the lot, the larger the building
18 envelope. Again, I pointed out that homes in that
area vary in size, but most are relatively
19 modest. They are nice homes, valuable because all
of Southold is valuable, but the size of the lot
20 and the size of the home are not McMansions in any
way. They' re in keeping with- the sizes of the
21 parcels.
So, in our efforts to do this lot line
22 change we think we' re creating a lot that really
would be just like every other lot in the
23 neighborhood and also correcting a site plan
problem with this unincurred commercial property
24 because she does need more parking and her
business is just growing in such a way that she is
25 really crunched in there for all the services that
she provides.
January 25, 2007
20
1
2 So I'm here to answer any of your
questions and she' s here, and I think there might
3 be people here as well .
CHAIRMAN DINIZIO: Well, I just had a
4 couple questions . Because I can' t quite tell from
the record, it looks like you' re following the
5 zoning district line
MS . MOORE: Precisely.
6 CHAIRMAN DINIZIO: And I think you
mentioned just now how not useful that piece of HB
7 as a residential lot would be to anybody.
MS . MOORE: Yes . It would end up being
8 something that I could visualize a commercial area
in the front, either misuse, commercial,
9 residential use and then the parking for it behind
be allowed to encroach in a residential by a
10 certain footage. I -- we can' t creatively think
of what kind of development, I guess given enough
11 time we could go through the uses in HB. We could
say, yes, we could do this, that and the
12 other. That' s not what we' re doing. We want
really a pretty straight, white-bread type of
13 development here. Professional office in the
front and a straightforward, single-family
14 dwelling behind.
CHAIRMAN DINIZIO: Certainly, based on
15 that line.
MS . MOORE: Yes. The lot line I guess
16 ultimately could change, but encroaching, if we
make the residential lot larger, we have the
17 zoning lines falling over the property lines,
which doesn' t make sense, and when the time comes
18 that Sandra can do her site planning for the
commercial space, the extra space there is really
19 helpful because it adds room for screening and
buffering.
20 CHAIRMAN DINIZIO: I mean, is it your
intention to increase the size of that building
21 tow?
MS . MOORE: Her plan is, yes.
22 MR. PERRY: This is nerve wracking.
CHAIRMAN DINIZIO: How do you think
23 people feel when they come to you?
BOARD MEMBER OLIVA: Good, that' s what
24 they feel .
MR. PERRY: Half of that property would be
25 business, and I don' t know if you have seen my
parking lot in the back; I want to bump the
January 2.5, 2007
21
1
I
2 building out to, that spot and go a little bit to
the west. I need a bigger space. I have formed a
3 new partnership with Christina Barry, we' re also
going to be the North Fork Breast Cancer -- I
4 don' t know if you knew that. We' re going to
certify we' re the only two certified physical
5 therapists for 50 miles, and we' re getting more
and more business and very private things, and I
6 need a private space. And I don' t have that now,
so I need to add onto the business for that I
7 really need bigger parking. We' re actually
parking now in the dirt, and I need to spread that
8 out. It' s all very important to me that it look
nice. So I would want to keep any lines with the
9 current colonial look. I'm not looking to put
anything big, flashy whatever. I'd probably add
10 maybe 1, 000 square feet to the building.
CHAIRMAN DINIZIO: Let me ask, you might
11 not be able to answer this question but I just
want to ask. Will adding onto that building
12 require that you need another variance; do you
have any idea?
13 MS . MOORE: I don' t think so. I haven' t
looked at the setbacks, but I don' t think so. I
14 believe hamlet business setbacks are pretty
generous .
15 CHAIRMAN DINIZIO: I mean, I looked at
it,
16 I didn' t see it, but I figured if you would stand
there long enough you would have some idea.
17 MS . MOORE: You know, right now the front
yard is the only setback, and I don' t recall the
18 hamlet business front yard setbacks off the top of
my head.
19 BOARD MEMBER SIMON: I think it' s like 20
feet.
20 CHAIRMAN DINIZIO: Well, there' s prior
approval, you have ZBA prior approval for
21 something.
MS . MOORE: On business?
22 CHAIRMAN DINIZIO: I don' t know what it
is, I know I looked in there there' s a prior
23 approval for something.
MS. MOORE: I saw building permits and
24 things like that. I didn' t research it. I wasn' t
working on it at the time. I know there were
. 25 alterations that were permitted and I have COs,
' 93 , 197, something like that.
January 25, 2007
22
1
2 CHAIRMAN DINIZIO: No, this is 175 .
MS . MOORE: No, that I know about.
3 CHAIRMAN DINIZIO: It' s a little
confusing as to whether or not it' s these two lots
4 or two different, separate lots .
MS . MOORE: The zoning application was
5 affecting the parcel that we have before you with
a lot line change Sandra Perry' s building, I think
6 it' s preexisting and then it had alterations done
in from ' 93, ' 97 and 2000 . I think it got the CO
7 2001 .
CHAIRMAN DINIZIO: Okay. Ruth, do you
8 have any questions?
BOARD MEMBER OLIVA: No, not at all, I
9 think it' s great.
CHAIRMAN DINIZIO: Leslie?
10 BOARD MEMBER WEISMAN: I just want to say
for the record, Pat, I think you have summarized
11 very, very articulately and accurately all the
compelling arguments for granting this variance.
12 If ever there was a reason to create a
nonconforming size in a residential lot and
13 accurately -- all the compelling arguments for
granting this variance. If ever there was a
14 reason to create a nonconforming size in a,
residential lot where an appropriately scaled
15 house will eventually be built in this area, and
where you get rid of the confusion of split
16 zoning, which we just did on a property in
Mattituck, it makes a great deal of sense. And I
17 think Miss Perry' s providing a very valuable
service to the community and I look forward to
18 very important expansion in the kind of health
care you can provide for us .
19 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER: Are you asking
20 us to determine where we want the right of way, if
we want it included in Parcel 1 or Parcel 2?
21 MS . MOORE: We submitted it on the map to
the Planning Board initially, and the way we
22 submitted it to the Planning Board was with a
flag. So that is what we gave to you. Ultimately
23 because it' s a variance request, we could
voluntary say, we approve this, but we believe a
24 flag should be part of the right of way. Sandra
=z,
would prefer that not be the case because if in
25 fact a residential lot is sold in order to finance
her improvements to her building, it will not
January 25, 2007
23
1
2 impose liability on the commercial piece, the
residential aspect that is purely residential on
3 the two parcels, the one that' s existing and the
one that we' re proposing to create. So that is
4 always your option, I think, as a matter of your
discussions at the Zoning Board. And that' s why
5 the lot areas were given to you that way. Also it
clarified what -- because John Metzgar' s numbers
6 for square footage, the way he did it - - and I
understand why he did it -- the acreage of what he
7 calls Parcel 1, the 29, 088, did not include the
right of way area. So in sending up certified
8 notices, I think it clarified what exactly are the
sizes of the lots excluding so there would be no
9 confusion.
BOARD MEMBER OLIVA: Do you want it as a
10 right of way or a flag lot?
MS . MOORE: Flag.
11 BOARD MEMBER WEISMAN: Which would mean
that instead of 24, 891 square feet, which would be
12 without the right of way, you want to create a
flag lot that' s 31, 377 square feet?
13 MS. MOORE: Yes. Exactly.
BOARD MEMBER WEISMAN: For the record.
14 BOARD MEMBER GOEHRINGER: From a real
estate point of view, I think that' s a much
15 smarter idea.
MS . MOORE: Absolutely.
16 CHAIRMAN DINIZIO: Certainly from a
setback point of view, it' s helpful.
17 MS. MOORE: Also site planning it too.
Because we think that she has the DOT curb cut for
18 her business, and when she does some modifications
we anticipate that her curb cut will be the curb
19 cut that' s used. The residential doesn' t need
curb cuts, doesn' t need anything for the
20 residence. And we don' t want to have anybody
think that we' re going to use that right of way as
21 part of our access for the commercial use. I just
don' t think it' s proper planning to begin with nor
22 the liability.
CHAIRMAN DINIZIO: Michael?
23 BOARD MEMBER SIMON: I will play the
curmudgeon as speaking from this explanation of
24 this project. First of all, it' s just as a tiny
verbal point, it' s not clear to me that when you
25 . are taking a 50, 000 square foot conforming
residential lot, and asking that it be turned to
January 29, 2007
24
1
2 30, 000 square feet that that is a no-brainer. It
may be compelling, but it' s not a no-brainer.
3 MS . MOORE: No, no, no. If you listen to
my point. My point is that I said to her when she
4 came to me and said should I buy this piece
because there' s already parking on it.
5 BOARD MEMBER SIMON: Oh, I would agree
about that?
6 MS . MOORE: That was. I don' t think you
have a choice because you need it for --
7 BOARD MEMBER SIMON: So it' s not the whole
application?
8 MS . MOORE: No, no, no, believe me.
BOARD MEMBER WEISMAN: If that were so,
9 you wouldn' t be standing here.
BOARD MEMBER SIMON: The second point, my
10 last was misdirected, was that as an attorney, you
must know that the fact that the applicant' s
11 business is an excellent one and has a marvelous
reputation and is useful and valuable, is not
12 exactly a legal argument for granting the
variance. In other words, it' s got to be granted
13 on its own merits which we are considering.
MS . MOORE: But I think it' s a relevant
14 point because when you have an existing business
and building and lot that can be made more
15 conforming, I think that that is what we're
suggesting by a lot line change. We didn' t come
16 in asking for a two lot subdivision. We're asking
for a lot line change.
17 BOARD MEMBER SIMON: But the lot line
change has the effect of requiring a variance for
18 a residential lot, and that is at least part of
the issue, and maybe the major issue. What I
19 didn' t look clear about, I'm sure it' s in the
file, if there were no buildings on the lot and we
20 just simply had the zoning map, what is the
acreage that is in the HB or the general business
21 and what is the acreage in the R40?
MS . MOORE: That' s what the map shows .
22 BOARD MEMBER SIMON: Okay, I don' t see the
numbers . '
23 MS. MOORE: All right, the AC parcel, the
AC zoned land is 29, 088; and the residential zoned
24 parcel is 31 --
BOARD MEMBER SIMON: That' s under the
25 plan, as planned.
MS. MOORE: And Jim asked that question,
January 217, 2007
25
1
2 is your lot line change at the zoning line.
BOARD MEMBER SIMON: It is tracking the
3 zoning map itself.
MS. MOORE: Exactly.
4 BOARD MEMBER SIMON: So it' s saying put
residential where it' s zoned residential and allow
5 business to grow to wherever it is allowed.
MS . MOORE: Correct:
6 BOARD MEMBER SIMON: Okay, well, I think
that distinction is an important one because it is
7 not creating a residential expanded business lot
at the expense of R40 . It' s not trying to change
8 zoning lines, it' s only trying to change lot
lines . And under those considerations I think
9 there' s much .merit to the proposal after all .
CHAIRMAN DINIZIO: As usual, Mike, you
10 made it crystal clear. Anybody else need to be
heard on this for or against?
11 BOARD MEMBER GOEHRINGER: Gentleman in the
back.
12 CHAIRMAN DINIZIO: Okay.
MR. NOVICK: My name is Barry Novick. I
13 live on Town Arbor Lane. I'm one of the wonderful,
people that live in Founder' s Landing that this
14 morning you made reference to, and I know Miss
Perry is a wonderful business and a good person as
15 well . My objection to this is that I feel by
pushing -- I realize that the town business line
16 is beyond what Miss Perry is currently conducting
her business, and she wants the lot line change in
17 order to be able to create the size of the
business, but in essence, that' s pushing back into
18 the residential neighborhood the actual use of
hamlet business. And I feel that the highest and
19 best use of residential is residential, that will
impact negatively on the residential property
20 values with the immediate neighbors and the
community as well . So, I feel that zoning should
21 be designed for the well being of all; some
compromise is possible, but I think in essence
22 here what's being asked for is something that will
make a situation that will negatively impact my
23 residential values as well as those of the
neighborhood.
24 CHAIRMAN DINIZIO: Can I ask you this
question, sir? Miss Perry, the applicant, could,
25 if they wanted to, just merge those lots and build
her building as large as she wanted to as long as
January 2V, 2007
26
1
2 she conformed to the district that she was in.
MR. NOVICK: Well, when you say merge the
3 lots, are you talking about Parcel 1 and 2?
CHAIRMAN DINIZIO: If she merged those
4 lots, it' s one big lot, we' re not talking about
two lots . She's going back to where business is
5 allowed. So she' s not increasing the
district. She' s not asking for a zone change.
6 MR. NOVICK: Well, by merging the lots,
she would eventually have to get a variance or a
7 change of zoning?
CHAIRMAN DINIZIO: No. She would just be
8 able to build a building on the business piece of
property the size that that business piece of
9 property is, which is what she' s asking us to do.
MR, NOVICK: Okay. I don' t think I'm
10 totally appreciating what you' re saying because
what I'm saying -- and tell me if I'm wrong and
11 perhaps I am -- is that only a portion of the
surrounding lot, which I'm calling Parcel 2,
12 that' s most of that is R40 . What I'm saying is to
be successful, to do what she wants to do she
13 needs to use, further use the hamlet business
portion of her, of that lot.
14 CHAIRMAN DINIZIO: Yes. Which she could
legally do.
15 BOARD MEMBER WEISMAN: She can do that
now.
16 CHAIRMAN DINIZIO: She has every right to
use the hamlet portion if she doesn' t have two
17 lots, if she has a single lot. Basically she' s
asking -- she' s not asking us to extend the zoning
18 district or to make business come any closer to
any residential property because she' s already
19 allowed to do that.
MR. NOVICK: She' s allowed to do that, but
20 what is the relevance of the 49, 000 square foot
portion of the property being pushed back to
21 3 0, 0 0 0?
CHAIRMAN DINIZIO: She wants to utilize
22 the entire commercial piece of that property for
commercial use, and also gain the benefit because
23 she has two lots now, of having a residential lot,
which will be somewhat smaller, but certainly not
24 large enough to build a mansion on. And the Town
basically would gain from that just because of
25 that -- because the size of that lot would be
smaller.
January 26, 2007
27
1
2 But I heard you say, and I wanted to clear
that up, that :the impression that she was
3 expanding the business district, and she' s not.
She's not. She' s not expanding the business
4 district; she' s just expanding what she can use of
the business district.
5 MR. NOVICK: Would that require a
variance?
6 BOARD MEMBER SIMON: No. She' s simply
more fully utilizing what she is entitled to
7 utilize, what she is underutilizing at the
moment.
8 MR. NOVICK: I understand, thank you.
CHAIRMAN DINIZIO: No, thank
9 you. Anybody else wish to speak on Sandy Ground?
Then hearing none, I'd like to entertain a motion
10 to close the hearing.
(See minutes for resolution. )
11 - - ------------------------------------------ -----
CHAIRMAN DINIZIO: I will entertain a
12 motion for a 10 minute recess .
. (See minutes for resolution. )
13 ---------------------------------------- ------ ---
CHAIRMAN D.INIZIO: Next application is
14 for Arthur Aiello, a request for a variance under
Section 280-122 (100-244) based on the. Building
15 Inspector' s June 16, 2006 notice of disapproval
concerning a proposed 16' by 20' accessory garage
16 which increases the lot coverage over the code
limitation. 615 Marlene Lane, Mattituck.
17 I noticed in the record that there is a
prior ZBA denial for a 20 by 20 foot shed. And it
18 looks like your lot coverage is going to be --
you' re asking for lot coverage of 24 .2 percent; is
19 that correct?
MR. AIELLO: That' s correct.
20 CHAIRMAN DINIZIO: I got on the survey
24 .2 percent, so we' re going to assume that' s what
21 you' re asking for. Okay. If you would like to,
sir, tell us what you have in mind.
22 MR. AIELLO: Sure, can I first hand the
papers? What happened is I misplaced the
23 registered mail, but I got all the neighbors to
sign.
24 BOARD SECY. KOWALSKI : Yes, he mentioned
that. He did send them out by mail, just lost the
25 postal receipts, so, yes, we' ll take that.
CHAIRMAN DINIZIO: You got them back,
January 2�, 2007
28
1
2 though.
MR. AIELLO: Yes, but then I lost them.
3 BOARD SECY. KOWALSKI: He' ll supplement
that next week.
4 CHAIRMAN DINIZIO: So you' re going to do
another mailing?
5 MR. AIELLO: Yes .
CHAIRMAN DINIZIO: So we're going to have
6 to wait for that to come in?
MR. AIELLO: Yes, you' ll have to wait to
7 finalize that.
BOARD SECY. KOWALSKI: Well, not do
8 another mailing, he' s going to do another
affidavit and explain that he' s attaching the
9 (neighbor' s receipts instead of the post office
receipt, it' s a letter signed by the neighbor
10 saying that they have already received them by
certified mail, instead of having the post office
11 stamp receipt because you can' t replace those post
office stamped receipts: So you just can' t make a
12 decision .until you get that. Unless you research
another mailing.
13 CHAIRMAN DINIZIO: No, I'm assuming that
the affidavit is basically him testifying that he
14 mailed these things and they received them, right?
BOARD SECY. KOWALSKI: Yes, that' s the
15 affidavit Mr. Aiello will be giving us . When you
finish today, go over to the other building and
16 get a blank form, the affidavit mailing form,
because you still have to fill that out and submit
17 that.
CHAIRMAN DINIZIO: Okay, Mr. Aiello, now
18 that' s cleared up. Does anybody else have any
questions? Do you have anything else that you
19 would like to say?
MR. AIELLO: The overage, it' s not really
20 doing anything on the environment. Behind me is
550 feet of woods and a lawn and then a house. So
21 650 feet in the back, there' s -nothing else to
interrupt, no woods or anything like that and
22 also, basically for hardship to take all my
grandchildren' s toys and put them in the cellar,
23 not to trip on the steps and whatnot.
CHAIRMAN DINIZIO: What is it that causes
24 the lot coverage to be so large; is it the house?
BOARD MEMBER WEISMAN: Let me clarify
25 that.
CHAIRMAN DINIZIO: No, I want him to
January 2f, 2007
29
1
2 explain, I know.
MR. AIELLO: Thad to come to a variance
3 because I was over 52 feet because the architect
made a mistake on the room size on the back of the
4 house, it was over 52 . So I went for a variance
on that and then that' s it.
5 CHAIRMAN DINIZIO: So you had a house,
you put an addition on --
6 MR. AIELLO: I gave the house away and I
built a whole new house.
7 BOARD MEMBER GOEHRINGER: I think the key
here was that the greenhouse was existing so you
8 had no control of --
BOARD MEMBER WEISMAN: Well, limiting the
9 size of the. greenhouse at the last hearing.
MR. AIELLO: Right.
10 BOARD MEMBER GOEHRINGER: I wanted Leslie
to be aware of that because she wasn' t here; is
11 that correct?
MR. AIELLO: Yes. You gave me a choice at
12 the last one of the glass room or the garage at
that time. But, of course, the glass room was
13 attached at the time.
CHAIRMAN DINIZIO: Right. It was there
14 existing. Then the Board turned down the 20 by 20
garage.
15 BOARD MEMBER WEISMAN: But in addition
there was a condition that there would be no
16 increase in lot coverage in the future for
additions to the dwelling. It did not, however,
17 stipulate .in that finding that you could not
increase the lot coverage for an accessory
18 building and you increased it to 20 . 89 percent
with the sun room.
19 MR. AIELLO: That' s with the driveway and
the stoops and everything. The stoops weren' t
20 supposed to be counted, but there was an overhang
so they were counted.
21 BOARD MEMBER WEISMAN: But not the
driveways.
22 MR. AIELLO: Not the driveways .
BOARD MEMBER WEISMAN: You are now
23 proposing a one-car garage that' s 20 by 16 by 18
foot high with four foot setbacks from both
24 property lines; is that correct? I have to write
the draft findings, I want to make sure my facts
25 are accurate.
MR. AIELLO: Yes. See, I went four feet
January 2!�, 2007
30
1
2 because I have trees there. I don' t want to take
the trees down.
3 BOARD MEMBER WEISMAN: Right. And you
have very nice arborvitaes screening your house
4 from the neighbor' s property in addition to the
wooded area in the back.
5 MR. AIELLO: I try to keep it very nice.
The neighborhood' s expanding on Marlene --
6 BOARD MEMBER WEISMAN: I don' t think you
can effectively build a smaller one-car garage
7 really. And it is certainly a modest height at 18
feet. It' s going to be simply a frame structure.
8 MR. AIELLO: Yes, I'm going to try to make
it possibly cedar like the house.
9 f BOARD MEMBER WEISMAN: I have no further
questions .
10 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: No, I think he' s
11 stuck with what he' s got, and I can' t blame him
for wanting to have a garage just to put his car
12 in and some extra storage. Although it does
exceed the lot coverage which I usually am not too
13 happy about, but you have a small lot. So I have
no questions .
14 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER: No, I have no
15 objection to the application. But I would like to
reinforce the fact that you had a problem the last
16 time because you had the greenhouse, and it was a
certain size.
17 MR. AIELLO: They couldn' t change it
because of the roof line.
18 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: Yes. Would you agree
19 that the short answer to the question that was
originally asked I guess by Jim, is why is there a
20 problem with lot coverage; the short answer is
because the house is so large. It' s a relatively
21 small lot, and without a variance there' s not room
even for a one-car garage, which is the case
22 because the house is fairly substantial on a
modest sized lot. For example, I have a two-car
23 garage and an adjoining shed and a lot smaller
than yours, and I'm under 20 percent. So it' s the
24 size of the house.
MR. AIELLO: Right.
25 BOARD MEMBER SIMON: Then the question is,
of course, I understand the argument ,for need for
January 2�, 2007
31
1
2 storage, and I also understand the desirability of
a garage; right now there' s a paved driveway' that
3 goes up only as far as the house, that driveway
would have to be extended so you can get to the
4 house.
MR. AIELLO: Well, it could be bluestone,
5 it could be anything.
BOARD MEMBER WEISMAN: If anything,
6 technically impervious coverage is not counted
with regard to lot coverage. It' s a very large
7 front driveway, which is paved semi-circular, then
there' s the side driveway, and then that will be
8 going to the back of the property. If you. had to
choose between a shed as an accessory building,
9 which was big enough for your storage purposes, or
the garage, which was not big enough for anything
10 more than a car, which would you choose? You
don' t have to .answer that question but that would
11 be useful for me to know that because if the Board
decides that somehow that even 16 by 20, which is
12 modest for a garage, is not modest ,for an
accessory structure, you could build a 10 by 14
13 accessory structure for storage and be within the
mandatory lot coverage. See, I'm waiting for a
14 storage argument as to why you need both given the
crowdedness of the land.
15 MR. AIELLO: The garage that I propose now
is 16 by 20 which would fit my car and any -lawn
16 furniture and any little cars that are motorized
for grandchildren, it would fit in the 16 by 20 .
17 BOARD MEMBER SIMON: Right. But if the
Board decided it was too big given the size of the
18 lot and you had to deal with either the size of
the garage or an accessory structure for the
19 storage of the children' s things, which would you
go with?
20 MR. AIELLO: Well, how small would the
garage be?
21 BOARD MEMBER SIMON: To bring it down to
say 22 percent lot coverage.
22 CHAIRMAN DINIZIO: Could I clarify,
Michael?
23 BOARD MEMBER SIMON: Yes, please.
CHAIRMAN DINIZIO: - Their lot as it exists
24 now without the garage is over the limit
already.
25 BOARD MEMBER SIMON: Yes, a little bit
over.
January 21, 2007
32
1
2 CHAIRMAN DINIZIO: Yes,� 22 percent.
BOARD MEMBER SIMON: 21 .4 .
3 CHAIRMAN DINIZIO: So, he' s asking to
increase that, he got a variance for that already,
4 for the lot coverage that he' s over now,
BOARD MEMBER SIMON: Yes, and he wants an
5 additional.
CHAIRMAN DINIZIO: Now he has come in
6 again and is asking for additional lot coverage
for the garage. My question to that' was why, and
7 his answer was he built the house too big.
BOARD MEMBER OLIVA: Around the sun room.
8 CHAIRMAN DINIZIO: Anything else,
Michael?
9 BOARD MEMBER SIMON: No, I just wanted to
raise that as a question.
10 CHAIRMAN DINIZIO: Do you have anything
else to add, sir?
11 MR. AIELLO: That' s it.
CHAIRMAN DINIZIO: Okay, anybody else
12 wish to speak on this application for or against?
I would then like, hearing none, ask for a motion
13 to close this hearing?
(See minutes for resolution. )
14 -------------------------------------------------
CHAIRMAN DINIZIO: Next hearing is for
15 Russell and Florence Pellicano, . a request for a
special exception under Section 100-3.1B of the
16 Southold Town Zoning Code. The applicants-owners
request a bed and breakfast use, incidental to the
17 owner' s occupancy in this single-family dwelling;
for lodging and serving of breakfast to transient
18 roomers, as an accessory use. Location of
property: 9680 North Bayview Road, Southold.
19 Sir, please state your name.
MR. PELLICANO: Russell Pellicano.
20 CHAIRMAN DINIZIO: What would you like to
say about the application?
21 MR. PELLICANO: We would like a bed and
breakfast for ourselves.
22 BOARD MEMBER OLIVA: I just ask, are your
windows the correct size for. a B & B? You can
23 check with the Building Department for that.
MR. PELLICANO: I think the windows are
24 more than adequate.
BOARD MEMBER OLIVA: Thank you so much for
25 letting me in. The house is just beautiful and
the rooms are lovely. I think also we do require
January 2E, 2007
33
1
2 that you have some sort of a ladder in case of a
fire that they can get out of the windows then the
3 Building Department will tell you about exit signs
and so forth?
4 MR. PELLICANO: There' s a little egress on
the bedroom.
5 BOARD MEMBER OLIVA: It' s a fold-up
ladder, just go under the windows, doesn' t take up
6 any space. It' s lovely, thank you. It was a
privilege to see your house.
7 CHAIRMAN DINIZIO: Okay. Leslie?
BOARD ,MEMBER WEISMAN: Good morning, Mr.
8 Pellicano. Nice to see you again. This
information is to be entered into the record. I
9 have to write the draft findings so again, I am
checking my facts here. You are on 11 . 31 acres
10 and the surrounding dwellings are your relatives;
is that correct?
11 MR. PELLICANO: The one in the back.
BOARD MEMBER WEISMAN: On property that
12 you subdivided for that purpose. What .you' re
basically doing is finishing off the second floor
13 above the garage in order to put in a guest room
suite on that guest room floor. There will be
14 three guest rooms up there, all on suites in
addition to one suite over the garage that' s
15 independent of a connection to the interior.
MR. PELLICANO: Right.
16 BOARD MEMBER WEISMAN: Let me see what
else I need to ask. I certainly think that it
17 will be an amenity for the community. I fully
believe that having places for people to come and
18 visit that don' t require additional structure and
is using up more open space and allow them to
19 experience the residential and rural quality of
the north fork as we love it is a very good idea,
20 much better than building hotels and motels .
MR. PELLICANO: We really like. it out
21 here.
BOARD MEMBER WEISMAN: Well, you certainly
22 have a substantial involvement in your community. -
BOARD MEMBER WEISMAN: The property is
23 beautiful and so is your house. As long as you
meet all the code requirements, which of course,
24 you will have to do, and I'm sure you realize
that. I don' t have any problem with granting the
l 25 particular use for that property. I think it' s
very well suited for .that purpose.
January 2 V, 2007
34
1
2 BOARD MEMBER GOEHRINGER: ' If there' s ever
been a special exception application, this is the
3 one, we' re not worried about parking, we' re not
worried about backing out on North Bayview, the
4 main concern of this one very simply is whatever
the Building Department, as Miss Oliva has
5 indicated, there has been an increase, however, in
the window sizes, and in reference to egress and I
6 think probably that' s what she was mirroring when
she was referring to that. I don' t know if you' ll
7 be subject to that. That' s my opinion.
CHAIRMAN DINIZIO: Michael?
8 BOARD MEMBER SIMON: It just seems like a
fairly persuasive application. I have no
9 questions .
CHAIRMAN DINIZIO: I have no questions
10 either, other than to say that it seems that you
do meet all the requirements for a bed and
11 breakfast. So is there can anyone who wishes to
speak? Yes, ma'am?
12 MS . MURRAY: My name is Karen Murray. I
live on 9350 North Bayview Road. My husband and I
13 and our neighbors Ron and Arlene Smith just had a
couple questions .
14 First, is the exception just for the
current number of rooms or could the house be made
15 larger at some point to add some rooms with this
exception?
16 CHAIRMAN DINIZIO: Well, a bed and
breakfast could be up to five rooms. They would
17 have to come back because we' re granting what we
have on the map right now.
18 MS. MURRAY: And it doesn' t permit any
other business use.
19 CHAIRMAN DINIZIO: No, they can' t have
accessory apartment. There are things in our code
20 they will have to meet those requirements that
they can' t have because they have a bed and
21 breakfast. One is an accessory apartment. They
couldn' t have an accessory apartment in that.
22 MS. MURRAY: Okay, and my neighbors Ron
and Arlene Smith are in Florida and can' t be here
23 and wrote a letter. I don' t know if I should read
it.
24 CHAIRMAN DINIZIO: Go ahead, you' re
welcome to read it.
25 MS . MURRAY: Okay, they are at 9390 North
Bayview.
.January 2�, 2007
35
1
2 "The subject' s request for a special
exception to convert their single-family dwelling
3 to a bed and breakfast causes us concern. At its
closest point our property line is approximately
4 1617" from their gravel driveway. Our house is
approximately 150 feet from said driveway. At
5 this point and for several yards along their
driveway there is simply no natural screening to
6 help absorb the noise of their current car and
truck traffic. The noise would be exacerbated by
7 the additional traffic that a bed and breakfast
would bring. This could be remedied by adding
8 some evergreens along the driveway where this void
occurs . "
9 There' s a second concern, I don' t know if
I should read the whole thing.
10 CHAIRMAN DINIZIO: Go ahead, read it.
MS . MURRAY: "In addition because our
11 properties lie so close to the proposed bed and
breakfast, our other concern is the potential for
12 their guests to walk through the woods and
trespass on our property. There is also a large
13 pond on our property. We do not want exposure to
any legal action should one of their guests be
14 injured on our property. However, this could be
mitigated by installing a four foot high black or
15 green chain link fence or an acceptable
alternative between our two property lines . This
16 would certainly be a better deterrent than filling
the woods with 'No Trespassing' signs, which are
17 an environmental blight and not always honored.
"At ..this time we must with hold our
18 endorsement of this proposed special exception
request until our concerns have been addressed.
19 Since we are out of town, since we will be out of
town, we will have someone representing us at the
20 meeting. "
This is Arlene Smith and Ronald Smith.
21 CHAIRMAN DINIZIO: So you' re representing
them?
22 MS . MURRAY: I'm their neighbor, they
asked me to bring the letter.,
23 CHAIRMAN DINIZIO: So they don' t want to
hold the hearing up and have someone, a lawyer
24 represent them at - the next meeting?
MS . MURRAY: They just wanted me to
25 present this to you.
CHAIRMAN DINIZIO: So they' re not asking
January 2�, 2007
36
1
2 to hold the hearing?
MS . MURRAY: No.
3 BOARD MEMBER SIMON: Can we have copies of
the letters?
4 CHAIRMAN DINIZIO: Yes. Ruth?
BOARD MEMBER OLIVA: How far did they say
5 they were from the property line?
MS . MURRAY: The Smiths say their property
6 line is 1617" inches from the gravel driveway.
BOARD MEMBER OLIVA: To the west?
7 CHAIRMAN DINIZIO: Specifically they' re
talking about a property line, not a building,
8 which is one hundred and some-odd feet away.
BOARD MEMBER SIMON: ' 150 feet.
9 CHAIRMAN DINIZIO: So let' s not get that ..
confused.
10 MS . MURRAY: So they' re basically worried
about the noise and about the pond.
11 BOARD MEMBER WEISMAN: Let me be sure, are
they east or west?
12 MS. MURRAY: To the west.
BOARD MEMBER WEISMAN: I saw that building
13 there.
BOARD MEMBER GOEHRINGER: Can I just ask,
14 are they facing the road or are they on the flag
lot?
15 MS . MURRAY: We' re down the road, down a
gravel road that parallels to the Pellicanos .
16 BOARD MEMBER GOEHRINGER: So you' re in the
back.
17 MS . MURRAY: We' re in the back, the Smiths
are --
18 BOARD MEMBER GOEHRINGER: In the front.
Who has the pond; they have the pond in the rear
19 of their property?
MS. MURRAY: It' s between them and North
20 Bayview.
CHAIRMAN DINIZIO: Is this a natural
21 pond?
MS . MURRAY: Yes.
22 CHAIRMAN DINIZIO: I just read a case law
on ponds and actually it was Reader' s Digest, that
23 the property owner is actually responsible for
insuring that that is safe. The neighbors can' t
24 possibly be expected to worry about whether their
children or whatever are running about. I don' t
25 know that that holds too much weight with me
personally. If they think a fence, they actually
January 2�, 2007
37
1
2 have stated publicly that they state a fence would
help there, perhaps they now probably should
3 consider that because on the record they have
been -- but that' s only my opinion; does anybody
4 else have any comments on the letter?
BOARD MEMBER WEISMAN: Well, I' ll ask a
5 question, I must say that 150 feet away from the
house is substantial . For a house to be located
6 that far from a property line is substantial..
It' s not as though they' re very close. I assume
7 that with three guest rooms the amount of traffic
will be quite minimal and seasonal .
8 MS . MURRAY: Three or four guest rooms?
BOARD MEMBER WEISMAN: Four. altogether.
9 Mr. Pellicano, let me just ask you a question at
this point. You have heard what your neighbor is
10 concerned about. How would you feel about the
possibility of putting in some additional
11 evergreen screening along that driveway to
mitigate some noise and view?
12 MR. PELLICANO: If you look at it in the
summer time when it would be the same --
13 BOARD MEMBER OLIVA: You can' t see it.
MR. PELLICANO: It' s very well wooded and
14 unless they chop down some trees -- I will comment
on this, though. This particular couple, they
15 have hunters come on their property, which
actually trap animals across our property.
16 BOARD MEMBER OLIVA: He' s not supposed to
do that.
17 MR. PELLICANO: I understand. We have
complained about it. So I'm sure that this has
18 precipitated this complaint.
CHAIRMAN DINIZIO: Okay.
19 ASST. TOWN ATTY. CORCORAN: If I could
just speak very briefly on the issue of the
20 liability. Generally speaking, it' s the
respective rights and liabilities between the
21 neighboring property owners to figure out who is
responsible for trespassing liability resulting
22 from that, et cetera. It is to the extent it' s
relevant to this Board that you have to consider
23 the neighborhood.. You have to consider how close
properties are and whether uses are compatible
24 with the surrounding neighborhood. So it' s not
irrelevant. It' s relevant whether somebody' s
25 close to another and whether people are going to
be wandering onto other properties and whether
January 2 C, 2007
38
1
2 that creates a dangerous condition. You don' t
need to talk about who is liable for what. That' s
3 between them and the type of activities they' re
conducting, and the type of conditions on their
4 property. But it is relevant for you to consider
whether a use is appropriate for the surrounding
5 neighborhood.
CHAIRMAN DINIZIO: I apologize for making
6 that statement too. Michael?
BOARD MEMBER SIMON: No. Just a
7 clarification. Are you saying that with regard to
the point about the fence, it' s a question that
8 you might be seeking a condition from the
applicant to put up a fence to protect people from
9 going into the Smiths' pool?
MS . MURRAY: You know, they' re my
10 neighbors . They asked me to deliver a letter. I
just .want to be a good neighbor and help them out
11 while they' re in Florida. They said this could be
mitigated.
12 BOARD MEMBER SIMON: And we could be clear
on this and say it doesn' t make clear mitigated by
13 whom, fine. Whether it should be mitigated by the
applicant or mitigated by the Smiths themselves.
14 BOARD MEMBER GOEHRINGER: I think the
point in question is liability and regardless of
15 who is responsible for it, it's where the
liability started and where the liability stops .
16 If you can' t clearly define what your property
lines are, and they' re not delineated, then really
17 doesn' t know what the situation is . We have in
the past asked people to put up such environmental
18 fences as a split rail fence in between the
property lines . What it very simply does is in
19 the agreement that you have with your guests is,
please don' t proceed any farther than the split
20 rail fence.
MR. PELLICANO: Don' t go on the left side.
21 BOARD MEMBER GOEHRINGER: Right
MR. PELLICANO: We have 11 acres on the
22 other side, so I really don' t think they would go
over there. As far as the pond goes, most of the
23 times it' s a mud hole.
BOARD MEMBER WEISMAN: It' s not terribly
24 appealing. Not Walden exactly.
BOARD MEMBER OLIVA: Just this time of
25 year, in the summer time it probably dries up.
CHAIRMAN DINIZIO: My point is I don' t
January 2,'F, 2007
39
1
2 know if we need to condition anything based upon
that letter. I think requiring the person who has
3 11 acres of land to put a fence up between a
property line, we in the past we have had bed and
4 breakfasts that are on half acre lots that we
didn' t have to deal with a fence. I just wanted
5 to be fair to you to tell you how I felt about it
because quite honestly, I think if the Board
6 doesn' t feel that they want to require any
screening on that, I certainly don' t either. But
7 I don' t think it' s an unreasonable request.
Does anybody else have anything else they
8 would like to add? Do you want to hand that up?
MS . MURRAY: Sure. It' s just, I think we
9 coexisted pretty well . Everybody is pretty quiet
and respect each other' s privacy. It' s just, you
10 know, our only fear was how much additional noise
or traffic it would be, and if it' s limited to
11 just this use.
CHAIRMAN DINIZIO: No, I think your point
12 was well taken. Personally I don' t like the idea
of bed and breakfasts in residential zones . I
13 have been clear about that quite a few times . I
think it is a business and it should be in a
14 business place. You' re asking for strangers to
come into a neighborhood that wouldn' t normally be
15 there. But the Town law allows it and therefore,
I think as long as he meets the criteria, which he
16 obviously does or will have to required by the
code, I don' t think we have much recourse.
17 ASST. TOWN ATTY. CORCORAN: The permit
will limit the use to what' s applied for and it' s
18 actually a renewable permit each year. So if
someone exceeds the scope of the granted permit,
19 you can certainly bring that to the Town' s
attention and that would be grounds to potentially
20 not renew the permit.
BOARD MEMBER SIMON: Also if there were
21 abuses of a different sort, that could also be
grounds for not renewing. If the guests were
22 running rampant over the neighbor' s property,
would that be a factor?
23 CHAIRMAN DINIZIO: It' s a tough
nut. We' re not really granting that, Michael .
24 . BOARD MEMBER SIMON: Just following up on
Kieran' s point, it gets reviewed under
25 reapplication. And if there were problems, could
be problems of the sort that the Smiths' letter
January 2�", 2007
40
1
2 anticipate, those could be .reviewed by the
reviewing board at that time; is that correct?
3 ASST. TOWN ATTY. CORCORAN: It is
potentially relevant. If it turned out to be an
4 egregiously not relevant use for the neighborhood
at that time. Jim is correct that if you meet the
5 criteria, essentially, it' s a use as of right by
permit. But this Board does have discretion to
6 continue or not continue.
CHAIRMAN DINIZIO: I always brought up,
7 it could be Billy Bob' s Beer Drinking Bed and
Breakfast, it could be a guy who has a bed and
8 breakfast --
BOARD MEMBER WEISMAN: He doesn' t look
9 like Billy Bob.
CHAIRMAN DINIZIO: I know this
10 gentleman' s not going to be that. It was always
my point the Town opens themselves up to a variety
11 of interpretations of what a bed and breakfast
are. Yes, they could come before us, if someone
12 came back, I certainly would consider, hey,
they' re getting up at 4 : 00 in the morning every
13 morning, but maybe that' s part and parcel, where
you could deny that application. But we only have
14 that opportunity, they have to go back to the
Building Inspector.
15 ASST. TOWN ATTY. CORCORAN: It' s somewhat
of a ministerial function but if you have a
16 problem, you could bring it to the Town' s
attention.
17 BOARD MEMBER WEISMAN: This is an owner
occupied application. And I'm sure that the
18 Pellicanos want peace and quiet in their own
lovely dwelling as the neighbors do. And I'm
19 certain that it will be properly run and an
amenity for the community, and I think it' s an
20 appropriate use for the residential zone. It' s
one thing that if it' s being run by a manager
21 who' s there and the owners are not residing in it,
then you can legitimately look at it as primarily
22 a business use. But when it' s owner occupied in a
residential zone, it seems to me it' s appropriate.
23 CHAIRMAN DINIZIO: Okay. Do you have
anything else to add?
24 MS . MURRAY: I don' t.
CHAIRMAN DINIZIO: Certainly, if it was a
25 manager, Leslie, it doesn' t meet the code. I
would like to entertain a motion to grant it as
January 2V, 2007
41
1
2 applied.
BOARD MEMBER WEISMAN: It' s mine to write
3 so, if you want to move it, I' ll second it.
BOARD MEMBER OLIVA: I' ll move it.
4 (See minutes for resolution. )
-------------------------------------------------
5 CHAIRMAN DINIZIO: Next hearing is for
Phillip and Linda Kermanshahchi concerning a
6 request for a variance under Section 290-14, based
on the Building Inspector' s October 20, 2006
7 notice of disapproval concerning an as-built
addition to the single-family dwelling with a
8 setback at less than the code required 60 feet
from the front lot line, at 7213 Peconic Bay
9 Boulevard, Laurel .
Is there anyone who wishes to speak on
10 behalf of this application?
MS . MOORE: Pat Moore.
11 CHAIRMAN DINIZIO: After going through
the record, I see you have an existing setbacks of
12 22 . 9 feet, and you' re asking. for 14 .4 feet?
MS . MOORE: Actually after the surveyor --
13 we' ll stick to yours only because it' s a
significant structure measured from the eves .
14 Originally the notice of disapproval was based
upon a measurement which was measured at the
15 approximate measurement, and now we have a survey
in the file that actually gives us an exact.
16 BOARD MEMBER WEISMAN: 15 .2 . You' re going
by this survey by Corwin?
17 MS . MOORE: Yes.
CHAIRMAN DINIZIO: Read the date into the
18 record, please.
MS. MOORE: Yes, it is originally dated
19 November 8, 2004, updated October 22 2005 . We' re
trying to determine if we could apply the average
20 setback rule in this case, but the houses that are
along this road, they actually don' t front this
21 right of way, but the measurements I thought were
relevant anyway. So we included it.
22 I have Mr. Kermanshahchi here if you have
any questions for him. This piece of property is
23 unique in the sense that it is originally part of
the larger parcel that was owned by the Roman
24 Catholic Diocese of New York. It was ' a girl' s
camp. So that was the original use of this
25 property. In ' 77 it was subdivided and this
particular lot was created among four other lots .
January 2f, 2007
42
1
2 The building that was here was converted to a
girl' s bathhouse originally and it was converted
3 to a residence by the prior owner. Mr. Goehringer,
being a Mattituck resident might recall Mr. Parini
4 because he seems to have been a character. He
apparently collected scraps of wood and other .
5 things and used it to piece together this
structure. So when Mr. Kermanshahchi purchased
6 the property, it really needed major renovations
from top to bottom, and every time he pulled a
7 wall, he would find it was made with some other
piece of material that is not usually used for
8 construction. So it' s been a challenge for him.
We are asking for an as-built because he
9 is a weekend warrior, and he did not 'realize that
the roof line change and he was covering over what
10 was a carport at the time that should have come in
for a variance and for a building permit.
11 Certainly at the time it was discovered that there
was a need for a building permit, he came in and
12 started the process . Whether he comes in now
as-built or comes in, prior, the design probably
13 would not have changed dramatically because the
only place for this garage is where it' s proposed.
14 The house interior, if the garage goes into the
living space that is not the bedroom. To put this
15 garage any where else would have attached to
either open windows or to bedroom. I think I
16 pointed out in my written application, the
opposite side that would have made it conforming
17 to the addition of the existing dwelling is
attached to the children' s bedroom and that' s not
18 an appropriate place for a garage and access .
The existing structure is preexisting, as
19 we pointed out the existing structure is at 22 . 9 .
I give him credit for retaining what is a really
20 charming original structure. He has done -- you
haven' t gone inside but inside he' s done a really
21 remarkable job keeping to the character of the
original open spaces that was the original --
22 BOARD MEMBER OLIVA: I think bath house.
MS . MOORE: Play house, and then as it was
23 altered by Mr. Parini. I think the application
speaks for itself. We did get various
24 supportive -- I got phone calls in support of this
application by Mr. Danson, Mr. and Mrs . Danson.
25 Mr. Danson called -- he is the property- owner to
the north and owns the property to the east as
January 2J', 2007
43
1
2 well.
BOARD MEMBER GOEHRINGER: The house facing
3 Peconic Bay Boulevard?
MS . MOORE: Yes, it' s pretty far back.
4 Kragle was the subject of a variance application
that was granted for a similar request, an
5 expansion of the garage. That particular
application again, there was more room, the house
6 was new construction and it had been placed
properly on the property we, on the other hand,
7 are dealing with a preexisting, nonconforming
structure. The right of way is well maintained.
8 Everyone participates in keeping it in pretty good
condition. It' s adequate in size, and I did, as I
9 pointed out the survey that was prepared by
Mr. Corwin, does show the position of the two
10 small houses that are shown as benefit, those two
properties actually had received variances a very
11 long time ago. And those houses, the one closer
to Peconic Bay Boulevard, has a setback to the
12 road of 3 . 1 feet, and the parcel to the north of
it or further down the right of way, has a setback
13 of 5 .7 feet. Those two parcels have access
through their own right of way. But that shows
14 you some of the character of that area, which is a
lot of preexisting, nonconforming structures and
15 those homes appear to have been some bungalows,
second homes that I believe at this point have
16 been converted to year round use.
If you like, I can answer questions at
17 this point. I have given you a lot of written
material .
18 CHAIRMAN DINIZIO: Michael, how about
you? BOARD MEMBER SIMON: I am concerned
19 about the kind of a test or criterion for granting
as-built variances, and one argument that we used
20 is to ask the question of what would we have
approved in the first place. And you point out
21 that a variance was given in 1995 for a brand new
structure which was only 20 feet where there was
22 60 feet required. You want to argue that this is
a variance that would have been granted or should
. 23 have been granted had it been applied before the
current owner began working on it a couple years
24 ago?
MS . MOORE: Well, yes . But predominantly
25 because that was already a carport, and as I
pointed out, the carport you can still see the
January 2�, 2007
44
1
2 underlying structure below this. Once the
Building Department stopped -- they stopped
3 everything, including the old frame of the old
structures that is under it. So that was the
4 area% the whole hous.e is already preexisting. It
was designed with that as the garage entrance, the
5 utility room and everything else. So that is the
area where the garage would have gone and where an
6 ,1 application to this Board would have been made
where it is now.
7 BOARD MEMBER SIMON: Are you saying that
the carport was a preexisting, nonconforming
8 structure, and since from the point of view of
zoning, a carport isn' t distinguishable from an
9 attached garaged --
MS . MOORE: Yes, the carport really was --
10 I call it a carport, it was an unenclosed garage
because it had two walls . The interior walls were
11 existing. It had a roof . It had a partial
opening because they used wood and things to
12 enclose it.
BOARD MEMBER SIMON: But it was part of
13 the structure.
MS . MOORE: It was part of the
14 structure. In order to fulfill a properly CO' d
building permit compliant garage, you have to put
15 in foundation, and you have to put proper fire
rated separation between the car storage, the
16 mechanical and the house. So all those things are
being done properly, and that is a space that
17 would be required. So while I'm pointing out that
yes, I know the criteria, that if you didn' t know
18 the as-built, you look at it as if it wasn' t
there. Prove to me that it would be appropriate
19 there and that' s what I'm saying, that that is the
appropriate location for the garage.
20 BOARD MEMBER SIMON: Given that there is
already a carport.
21 MS . MOORE: The house is designed on an
angle and that is the area where the
22 nonresidential living space is . Also, I would
point out that the roof lines here, you are
23 dealing with again, a preexisting structure that
had very choppy roof lines, and the way it is
24 designed is very nicely done, and it incorporates
part of the old structure. So it' s a one-story
25 with some extra -- where the peak is to allow for
some extra storage in the roof and garage area,
January 25, 2007
45
1
2 but it is a one-story structure. So it' s quite
large, so the demolition and to rebuild.
3 BOARD MEMBER SIMON: Or to put the garage
behind the house. That' s the better, as would
4 suggest, is a detached garage rather than an
attached.
5 MS . MOORE: Yes. The other alternative
would have been a detached garage, but the need
6 for the correction for some of the utility rooms,
and the fire separation that were inadequate, he
7 needed to do something with that space, and it
made sense financially to incorporate the garage
8 into the renovations in the correction of the
existing structure. Yes, if they could have built
9 a detached garage on their almost three acres here
to build on, but the overall design --
10 BOARD MEMBER SIMON: Right. But one
point, if it didn' t happen that this house, unlike
11 some of the neighbors fronting on the right of
way, would you need a variance? What sort of
12 variance would you be needing if, in fact, it were
not seen . as fronting on the right of way?
13 MS. MOORE: You would need a side yard at
that point. I think you' re at a 20 foot setback ,
14 on a side lot, so we clearly have 25 on the one
side, we would have 20 . So instead it would be a
15 side yard.
BOARD MEMBER SIMON: Instead of 16 or 15?
16 MS . MOORE: Right. Again, this is towards
the end of the right of way. This is a very
17 private development. There' s really no through
access here. So while this is a front yard
18 setback, as you point out, it' s looks more like a
side yard.
19 BOARD MEMBER WEISMAN: The neighbor at the
end of the right of way isn' t the one against it,
20 and they support this application.
MS. MOORE: They were very thrilled when
21 Mr. Kermanshahchi and his family bought this
property because they certainly cleaned it up
22 here. The number of dumpsters that Mr. Parini' s
wife had to use when her husband not only
23 collected things, he was a pack rat. I don' t know
Mr. Goehringer, do you remember him?
24 BOARD MEMBER GOEHRINGER: Mr. and Mrs .
Parini were friends of mine.
25 MS . MOORE: I only had hearsay, so I hope
I didn' t insult.
January 25, 2007
1
46
2 BOARD MEMBER GOEHRINGER: No, no,
no. Mr. Parini was a postman in the city and when
3 he came out here, he became a collector of
everything. He was actually a wonderful
4 individual . And died tragically, it was horrible.
But the one thing one has to look at is the
5 neighborhood and the density on the piece they
live on, and they own the chapel, which is next to
6 it or adjacent to it, and that is really the only
other parcel that would be impacted, and the
7 house, from its original structure has not changed
much. I hope that Mr. Kermanshahchi took out the
8 fish tank that was in the ceiling that he used as
a sky light -- not you, sir, Mr. Parini, because I
9 questioned Dominick about that when he did that.
MS . MOORE: And the shower door too.
10 MR. KERMANSHAHCHI: That was a shower door
not a fish tank. And he did that troth - - right,
11 but it did still have the aluminum rim around the
edge.
12 BOARD MEMBER GOEHRINGER: Please excuse me
for mentioning that because I did question
13 Dominick about that.
BOARD SECY. KOWALSKI: -Sir, what is your
14 name for the record?
MR. KERMANSHAHCHI;: Philip Kermanshahchi.
15 MS . MOORE: It' s very cleaned up now that
you don' t see what it was before. .
16 BOARD MEMBER GOEHRINGER: If you don' t
mind some day you may see me come over and just
17 introduce myself again, and I would like to - -
again, I use the word reinforce the old and
18 compare it to the new, if you don' t mind.
MS. MOORE: It really is a beautiful --
19 BOARD MEMBER WEISMAN: Beautiful job.
BOARD MEMBER GOEHRINGER: I was there but
20 I did not go in.
BOARD MEMBER WEISMAN: I did actually have
21 a question, . though. We' re provided with kind of a
foundation plan or a footage of the existing
22 dwelling because the only thing before us is the
proposed enclosure, garage, which I have no
23 objection to at all. But I wonder, the only thing
noted because we don' t have full plans for an
24 entry other than through what I think is your
child' s bedroom is the existing stoop to the house
25 that is in' the carport that essentially will be
now in the garage; do you have an additional entry
January 2'�, 2007
47
1 .
2 because it' s not in the plan for a front door
that' s. not in the front garage?
3 MR. KERMANSHAHCHI : Actually, there is no
other proper door into the house. We use the side
4 sliding glass doors to come in on the south side
off the patio.
5 BOARD MEMBER WEISMAN: Isn' t that
furnished as a small bedroom at the moment?
6 MR. KERMANSHAHCHI : That section?
BOARD MEMBER WEISMAN: Yes .
7 MR. KERMANSHAHCHI : No, Mrs . Parini kept
is as a sun room, which we have also.
8 BOARD MEMBER WEISMAN: Okay, so you' re
past your slate patio.
9 MR. KERMANSHAHCHI: Yes, you bypass both
bedrooms .
10 BOARD MEMBER WEISMAN: Because it wasn' t
noted, and I assume most people, although it' s a
11 small house, have some sort of public entry that' s
obvious to get, so on, if your garage door is
12 closed, how do you get in?
MR. KERMANSHAHCHI: My wife and I are
13 still debating which glass door should become a
door.
14 BOARD MEMBER WEISMAN: Exactly. As an
architect I just had a curiosity question. I
15 think you have done a beautiful job with the
siding.
16 MR. KERMANSHAHCHI: Suggestions are
welcome.
17 CHAIRMAN DINIZIO: Okay, anybody else?
My question when I first looked at it was why
18 can' t he put it in the back; if he put the garage
in the back yard, he would have to come, all the
19 way around to the front of the house to get into
the house.
20 MS . MOORE: He would have had to do
something with that side because, as I said, it
21 was already designed as the entrance, you came in
there, so you go into that hallway/kitchen area.
22 The other areas, the only other living space is
the sun porch, and you would end up having to put
23 a garage on what is now a beautiful wall of
windows . So it would change.
24 BOARD MEMBER WEISMAN: Then you would have
to have a big long driveway.
1, 25 CHAIRMAN DINIZIO: Okay, Michael 'got that
out of you; so is there anything else that you
January 2�, 2007
48
1
2 would like to add?
MR. KERMANSHAHCHI : I love living here.
3 BOARD MEMBER SIMON: Are you living in the
house now?
4 MR. KERMANSHAHCHI : Basically during the
year we come on the weekends. but when the kids are
5 out of school, we live out here.
CHAIRMAN DINIZIO: Okay, anybody in the
6 audience wish to comment on this application?
Hearing none, I will entertain a motion to close
7 this hearing.
(See minutes for resolution. )
8 -- -----------------------------------------------
CHAIRMAN DINIZIO: Next hearing is for
9 Henry Ruggiero, concerning a request for a
variance under Section 280-122 based on the
10 Building Inspector' s October 26, 2006 notice of
disapproval concerning alterations and/or
11 reconstruction of an existing sun room, which will
increase the degree of nonconformance when located
12 less than 15 feet on a single side yard. ZBA
interpretation is the Walz application. Location
13 of the property: 425 Calves Neck Road, Southold.
Anybody wish to comment on this
14 application?
MS. MOORE: Pat Moore on behalf of Mr. and
15 Mrs . Ruggiero. This is Mr. and Mrs. Ruggiero' s
property. It' s a very minor application. This is
16 an existing sun porch and they' re renovating the
house. They' re changing the pitch of the roof in
17 order to do a nicer job of the architecture of
this building to make that sun porch conform. So
18 the variance is really minor, it' s about one foot
additional of nonhabitable space. It' s just a
19 roof line change. Everything is staying the same.
I thought, it' s such a minor application, I
20 thought maybe you guys might consider looking at
your directive of coming for a variance every time
21 you do a slight alteration, and I would. encourage
you to look at how people are coming in under the
22 Walz decision to see if you have a nonhabitable
minor alteration to a preexisting where you are
23 conforming to the height requirements that you
don' t have to come before you for such a variance.
24 But I don' t want to complicate this application,
but I thought it would be a really easy one that
25 you could help the Building Inspector' s
requirements when you have a very small -- you
January 25, 2007
49
1
2 might have a foundation change, we had one of
those from a slab to a crawl space or a roof line
3 change where again, the key component is it' s not
habitable space; you' re not increasing the degree
4 of nonconformity, that you' re using the space more
and therefore creating more of an impact on your
5 neighbor. You' re really just changing a design
element that is conforming otherwise.
6 BOARD MEMBER GOEHRINGER: The word is
diminimus and we can' t do it.
7 CHAIRMAN DINIZIO: I would certainly
encourage you to write something down, Pat, and
8 maybe send it to me and let' s see if we can' t
somehow come across because you know what, for the
9 life of me I can' t figure the wording to get us
out of this Walz thing.
10 MS. MOORE: The Walz dilemma.
CHAIRMAN DINIZIO: Yes . So if you have
11 any ideas, I certainly would be open to do it.
MS . MOORE: I would be happy to maybe in
12 my --
BOARD MEMBER WEISMAN: You did write
13 something?
MS . MOORE: In my documents I did suggest
14 some language.
BOARD MEMBER WEISMAN: You did.
15 MS . MOORE: Which for the Building
Department I think they use common sense or they
16 like to use common sense, but with the Walz
decision you haven' t given the parameters to use
17 that brain that they have been given.
BOARD MEMBER WEISMAN: I have to agree.
18 This is really a situation where unnecessary time
delay and cost is involved where it is so
19 diminimus . And I think the key is it is
nonhabitable, you' re absolutely right, and as long
20 as it' s within the existing footage. It' s such a
small number, going from what is it 9111" to 1113"
21 simply to change the pitch and put on a rail, it' s
going to certainly enhance the architectural
22 character of the structure immeasurably.
BOARD MEMBER WEISMAN: And I have no
23 problem with the application. Jim, I think you' re
right, we should try and follow up.
24 CHAIRMAN DINIZIO: I agree. I think that
we should not address that in this application.
25 MS . MOORE: No, in other ways, you guys, I
would prefer that you do it internally with the
January 25, 2007
50
1
2 Building Department I just don' t know how.
Actually, most of these rules are coming out of
3 cases and interpretations. So we do that all the
time.
4 BOARD MEMBER SIMON: That' s where legal
rules come from, cases .
5 CHAIRMAN DINIZIO: In any case, does
anybody have anything else to say on this
6 application?
MS . MOORE: We actually would like it as I
7 said, this is diminimus, if you could grant this
application right away.
8 CHAIRMAN DINIZIO: I was going to suggest
that unless the Building Inspector has something
9 to say.
BOARD MEMBER SIMON: I .still have a couple
10 of questions.
CHAIRMAN DINIZIO: Hold on, your name is,
• 11 sir?
MR. KRUP: Philip Krup. I have known
12 Henry and Susan for the last eight years . They
have owned the house for about 12, and all they' re
13 doing is trying to improve it for the community,
increase the property values for the neighbors .
14 It' s from th'e 170s and we' re trying to keep that
1940s character when the houses in the
15 neighborhood were built.
CHAIRMAN DINIZIO: Does anyone else have
16 anything else they would like to say?
BOARD MEMBER SIMON: Just for
17 clarification in the application it is specified
that there' s 107 foot increase in the area of the
18 property; where is that, overhang?
MS . MOORE: What you' re talking about
19 right now, the roof like now is like this
(indicating) , we' re raising it slightly and
20 there' s a balcony. That is the square footage.
BOARD MEMBER SIMON: The square footage is
21 where the room is over -- it' s not a change in the
footprint, because 107 square feet is not really
22 square feet of the ground plan. The existing
footage stays the same. It looked like it was the
23 `same size, couldn' t figure out where 107 feet
was . Regarding the thing is you cannot define
24 "diminimus . " That' s the whole meaning, the
indefiningly small, but that' s a whole other
25 question. Jim?
CHAIRMAN DINIZIO: I'm sorry, Mike.
January 2.5, 2007
51
1
2 BOARD MEMBER SIMON: I'm just not
completely happy with the idea of voting this
3 right now, simply because the idea of scrutinizing
it closely in the light of discussion as much as
4 , we have been singing in unison, I'm not sure that
that' s sufficient.
5 ASST. TOWN ATTY. CORCORAN: The point is,
a point is that if for everything you vote on, and
6 approve, that then triggers a five day requirement
to issue the decision. So it' s great, and it' s
7 expeditious for applicants to have this Board to
grant applications at the hearing, but they are
8 then putting a burden on themselves to issue the
styled written decision within five days after
9 they do that. So I just want the Board to be
mindful of that; that' s state law.
10 CHAIRMAN DINIZIO: I was aware of that,
but this is Michael' s decision so if he' s not --
11 BOARD MEMBER SIMON: Am I writing this
one? Given the time it takes me to write it, and
12 get it to Linda and. back and forth. '
CHAIRMAN DINIZIO: That' s fine.
13 BOARD MEMBER SIMON: I had forgotten the
five days .
14 CHAIRMAN DINIZIO: I would suggest then
that we incorporate some of the change, that we
15 take the time.
MS . MOORE: That' s fine. ' We' re moving
16 forward, doing the renovation, maybe you could
just send a message to the Building Department.
17 ASST. TOWN ATTY. CORCORAN: It doesn' t
work that way.
18 CHAIRMAN DINIZIO: We really can' t do
that to be quite honest. It' s going to be 14
19 days .
MR. RUGGIERO: We are continuing with the
20 rest of the buildings . We're renovating it, we're
going to do a small addition that had already been
21 approved. This was approved originally as well
but then they denied it., why, I don' t know. I
22 don' t know a month after we received our building
permit. The only thing that has delayed me is
23 ordering windows and supplies for the house
usually takes four to eight weeks. That' s one
24 thing I haven' t been able to do is order windows
for. They do mostly use it in the summer time and
25 in the windows, so I would like this project going
before the spring.
January 25, 2007
52
1
2 BOARD MEMBER OLIVA: Why can' t we okay it?
MS. MOORE: Would it be a problem for the
3 Board if we said that this design it acceptable so
that we could order windows?
4 BOARD MEMBER SIMON: I don' t think that - -
ASST. TOWN ATTY. CORCORAN: I think you' re
5 getting the sense from the Board that you don' t
have it until you have it.
6 CHAIRMAN DINIZIO: And I would be
unwilling to say --
7 MS. MOORE: All right, fine.
BOARD MEMBER SIMON: The vote is what
8 counts, legally. I sense from the meeting is what
you can infer. That' s the best we can do.
9 CHAIRMAN DINIZIO: So I think we have it
all cleared up that we're not going to vote on it
10 today.
BOARD MEMBER OLIVA: We' re not?
11 CHAIRMAN DINIZIO: No.
BOARD MEMBER GOEHRINGER: Why not?
12 CHAIRMAN DINIZIO: Michael' s not ready
and the five day requirement would be pressing to
13 come up with a written decision.
ASST. TOWN ATTY. CORCORAN: After you
14 close the hearing, you have 62 days to vote and
make a decision, but once you vote and make a
15 decision, you have five days to issue that written
decision and file it with the town clerk.
16 CHAIRMAN DINIZIO: So, I suppose if
someone else is willing to write it, is that a
17 problem?
BOARD MEMBER SIMON: I guess as a matter
18 of procedure except in some other cases including
the ones that we dealt with today is the idea,
19 it' s certainly been the practice to write a draft
opinion and then circulate, discuss and vote on
20 it. Here we' re voting before we write the draft
decision.
21 CHAIRMAN DINIZIO: I tell you, Michael,
the two we voted on today and --
22 BOARD MEMBER SIMON: Right. And that' s
why I say, I have no problem with those, but the
23 idea of extending that is the slippery slope.
MS. MOORE: I thought you had more than
24 the special permits.
CHAIRMAN DINIZIO: No.
25 BOARD MEMBER SIMON: That' s strictly up or
down, things without conditions and so on.
January 25, 2007
53
1
2 CHAIRMAN DINIZIO: Right. So it is a
little different. So I'm all for closing the
3 hearing and wait until the 8th.
BOARD SECY. KOWALSKI : Also there' s a time
4 frame when you file an application, if you give a
letter with your application, the Board members
5 will get it, and they will consider whether they
should have something prepared ahead of time if
6 there' s a time emergency, when you file the
application, which can explain your time.
7 ASST. TOWN ATTY. CORCORAN: Everybody' s
got one.
8 CHAIRMAN DINIZIO: Unfortunately that' s
what happens .
9 MS . MOORE: Okay.
CHAIRMAN DINIZIO: So I will entertain a
10 motion that we close the hearing.
(See minutes for resolution. )
11 -------------------------------------------------
CHAIRMAN DINIZIO: This is an application
12 for W. Bruce and Mary Ann Bollman. Hearing
reopened for the purposes of receiving
13 documentation and testimony relative to LWRP code
Chapter 268 Local Waterfront Revitalization law.
14 This is an application concerning a request for a
variance under Section 100-244 based on the
15 Building Department' s February 3 , 2005 Notice of
Disapproval, concerning an application for a
16 building permit to substantially remove or
demolish existing dwelling, and to construct a new
17 single-family dwelling (1) at less than 10 feet on
a single side; (2) at less than 25 feet combined
18 side yards; (3) with lot coverage exceeding the
code limitation of 20 percent; and (4) at less
19 than 75 feet from the bulkhead. Location of
property: 1755 Trumans Path, East Marion.
20 My understanding is that the Court had
ordered us to reopen the hearing based on the fact
21 that the- LWRP was not made part of that record; is
that clear, that is all we' re here for today?
22 ASST. TOWN ATTY. CORCORAN: Essentially,
the court remanded it and directed this Board to
23 comply with the LWRP, which is Chapter 268 of the
Town Code.
24 CHAIRMAN DINIZIO: Right. So we all
received that and that is now currently part of
25 the record.
ASST. TOWN ATTY. CORCORAN: That' s what
January 257, 2007
54
1
2 we' re here for.
CHAIRMAN, DINIZIO: Okay, is there anyone
3 here that wishes to speak on this?
MR. ARNOFF: Harvey Arnoff, Roanoke
4 Avenue, Riverhead, New York, good afternoon,
Mr. Chairman, and Members of the Board. I think
5 I'm going to be brief, which is unusual .
I believe the Board' s correct, if the
6 ruling is dealt with it' s the chicken and the egg
type thing, in other words, the argument was made
7 that the Board did have . the LWRP after the
decision and that the LWRP did not have any impact
8 on what this Board had done. And the Court said,
notwithstanding that fact, procedurally it had to
9 come back here because the LWRP had to be
considered.
10 Now, the LWRP that was issued was the same
one that was issued back in or reissued in ' 06
11 saying that it was issued 105 and it was
considered by the Trustees . Now, we have, and I
12 believe Mr. Bertani is here with the builders in
case the Board has any questions of him, we have
13 to the extent possible complied with the LWRP'
recommendations . In fact, it is my understanding
14 there were some recommendations in regard, to --
one of the main recommendations was in positioning
15 of the septic system. But if you look at the
survey, you will see that there is a well within a
16 certain radius of the 100 feet. So we could not
reach the 100 feet without having to deal with the
17 drop. Similarly, Miss Gould has placed her water
pipes along the property line. So, if we further
18 move our septic system back along the side of the
existing building that is still there, we will be
19 within 10 feet of her water lines, which then also
has the Health Department issue as well . Be that
20 as it may, this was a Trustee issue. In fact, the
recommendations in the LWRP say specifically as
21 recommended, the Trustees require that the septic
system be relocated a certain distance and their
22 discretion -- and then apply their discretion.
The Trustees did that. The Trustees had this
23 document in their position and they made certain
recommendations that we complied with, which meant
24 moving some pools back further and relocating the
pools, which we have done.
25 CHAIRMAN DINIZIO: Can I interrupt for a
minute because it' s my understanding that the LWRP
January 2.5, 2007
55
1
2 says that your application is consistent with the
Town Code. So --
3 ASST. TOWN ATTY. CORCORAN: Let me clarify
that. The LWRP coordinator has recommended that
4 you find it consistent. This Board must make a
determination of whether it' s consistent. But
5 that' s a recommendation of the staff member.
CHAIRMAN DINIZIO: Okay. This is new to
6 us . So basically your explanation now of this
septic system is based on what he' s saying about-
7 minimums .
MR. ARNOFF: That' s correct. And the
8 Trustees, in fact, dealt with that issue. So what
I think is important is when what you said,
9 Mr. Dinizio, when you opened this. Is that we' re
not revisiting this application. I mean, I could
10 do that this afternoon, but you've heard a lot of
testimony in regard. to this, and the question is
11 does the LWRP impact or change what the Board' s
prior determination is. In other words, if they
12 revisit all the facts that they had before and
applied the LWRP to it, is there going to be any
13 significant change. It' s the position of the
applicant, there is no change, and that this does
14 in no way affect what the Board' s determination
was .
15 I will leave it up to Mr. Bressler I think
at this point to make all the comments he chooses
16 to make, and then perhaps, I may ask for leave to
address you again.
17 CHAIRMAN DINIZIO: May I just ask, may I
just clarify one more thing with you? Because we
18 had a hearing; we made a decision and we granted
alternate relief, and my assumption is that the
19 applicant has complied with that alternative
relief.
20 MR. ARNOFF: There was a stay issue, there
was an Article 78, there was a stay. We could not
21 comply. We are willing -- the answer is we are
willing to comply with this Board' s determination.
22 CHAIRMAN DINIZIO: Because this is what I
want to ask, the foundation that I see there now,
23 that' s the same foundation that was there before
we made the decision?
24 BOARD MEMBER OLIVA: No, it' s been moved.
CHAIRMAN DINIZIO: It' s the one that
25 complies to our standards?
BOARD MEMBER OLIVA: It complies to
January 25, 2007
56
1
2 ours .
MR. ARNOFF: We got permission if you
3 recall to put the interim stop-gap in to stop
erosion.
4 CHAIRMAN DINIZIO: That I understand.
MR. BERTANI :. That' s the one you asked us
5 to put in.
CHAIRMAN DINIZIO: That' s the footage we
6 asked.
MR. BERTANI : That you specified, that' s
7 what' s there. The only reason we' re here is
because I believe the decision was made before the
8 other decision was made.
CHAIRMAN DINIZIO: Right. We didn' t have
9 all the information.
MR. BERTANI: And the Trustees did already
10 comply, or made us go with the maximum we could
get --
11 CHAIRMAN DINIZIO: Right.
MR. BERTANI: -- with the septic system,
12 which we did do and they granted us the permit
based on that.
13 CHAIRMAN DINIZIO: Okay, thank you.
Mr. Bressler?
14 MR. BRESSLER: Good afternoon, Mr.
Chairman and Members of the Board. ' If the matter
15 before the Board was only so simple as put by Mr.
Arnoff. Although I do appreciate the brevity in
16 his remarks .
It' s not quite as simple as it appears .
17 Let me address what the issues are. The gravamen
of the reversal of the Supreme Court, which did
18 not address, by the way, the merits, the gravamen
of the reversal was that the LWRP was not done and
19 it had to be done, and it had to be considered by
this Board before action could be taken. That
20 much is clear.
However, to extrapolate from that and say
21 well, now we've done the LWRP and we've already
had a hearing, and by the way, the Trustees have
22 acted, is not the answer to that question. The
thing that bothered the Court and the thing that
23 shored the basis for our argument was without the
LWRP in front of this Board, it could not and in
24 fact did not consider the recommendations that
were contained in that document, which this Board
25 was required to do. And whatever the Trustees in
their wisdom or otherwise decided to do, has
January 25, 2007
57
1
2 nothing to do with this Board. This Board has the
discretion within the legal limits to act, and it
3 was required to consider what was in the LWRP and
act. That' s why we -re back here. So that this
4 Board can do that.
Now, assuming that the Board is willing to
5 do that, we then turn to the LWRP and ask, what' s
in it. What should we consider on this
6 application that we didn' t consider the last time
around? And that brings us to the LWRP itself .
7 An interesting little document in that it' s dated
December 20th. It' s somewhat similar to what was
8 sent to the Trustees, and there is a notation
"resubmitted January 19, 2007 . " It isn' t exactly
9 the same, in fact it' s different in several
telling aspects.
10 When we first turn to the introductory
paragraph where there is a description of what
11 this is, and unfortunately that' s just not right,
the applicant requests an amendment to move the
12 footprint of the dwelling 2 . 6 feet east. Well,
that' s not what the application was, that' s what
13 this Board granted. Well, why is that important?
It' s important because when you read it,
14 apparently the LWRP coordinator was under the
impression that this was a simple movement of a
15 footprint 2 . 6 one direction or another and that' s
not what' s before the Board. What' s before the
16 Board is the fact that the thing was torn down
completely, the foundation removed, and an
17 application made to rebuild in a nonconforming
location. That' s what' s before the Board. So the
18 coordinator got. that wrong.
Now we turn to the second paragraph. The
19 Town of Southold Board of Trustees issued a permit
for the action on April 21, 2004 . Well, that' s
20 plainly wrong. How could that be possible? The
action was only made by the Zoning Board of
21 Appeals last year. The Trustees did not issue a
permit, for moving this thing 2 . 6 feet. So there' s
22 another fundamental misunderstanding on the
part of LWRP coordinator.
23 The foundation of the proposed structure
currently exists . Well, at the time in January
24 19, 2007 that' s true because Mr. Arnoff pointed
out that was done at their peril pursuant to the
25 order of Justice Costello. The order said go
ahead, but you're not going to gain any vested
January 25, 2007
58
1
2 rights, you' re not going to gain any advantage by
doing that. So whatever I decide or whatever the
3 Board decides, you can' t use that and raise a
hardship argument.
4 We turn now to the next paragraph, there' s
a reference to a 6 .3 wood wall, we won' t see that
5 on the survey anywhere, presumably they' re
referring to some other wooden wall, I'm not
6 sure. And now we can come to the most interesting
part of the LWRP assuming that the coordinator
7 actually understood what it was that was before
him. He says it' s generally consistent
8 provided -- and I' ll call that an if -- it' s
generally consistent if the applicant demonstrates
9 that the policies are applied to the greatest
possible. Notice that now that' s a little bit
10 different than some of the other consistency
reviews that the LWRP coordinator has done. In
11 similar circumstances where you' re too close to a
wall or bulkhead or other areas of water, the LWRP
12 coordinator says it' s inconsistent because it' s
too close. Here he says, well, it' s consistent
13 but only if you move it back as far as you can.
So then the question becomes, well, is it moved
14 back as far as it can be to avoid hazards; in 4 . 1
Al, AB, avoid hazard by citing structures that
15 maximize the distance from coastal erosion hazard
areas; is that what happened here? It wasn' t
16 before the Board the last time around. And then
you go to the last page, and that' s rather
17 peculiar since this memo is addressed to you, it
made the recommendation that was addressed to the
18 Trustees . And I don' t know what that' s all about,
maybe it' s the 'word processing, but it seems
19 apparent that there wasn' t a lot of thought put
into this and it doesn' t really address what' s
20 before you. But that having been said, let me
just get over to the prior LWRP, December 20,
21 2005, the first paragraph suffers from the same
defects that I. mentioned before. Then you go to
22 the second paragraph, the structure currently
exists. On December, 2005 that structure didn' t
23 exist. It had been removed completely. So seems
to me again there' s a pretty grievous
24 misunderstanding as to what this is about.
So now, have we maximized the distance;
25 have we done that; is that the least amount of
variance as possible? We don' t think so. We
January 25-, 2007
59
1
2 don' t think what the Trustees think really
matters . So is it the least? No, it' s not the
3. least. If you look at the survey, the hundred
foot requirement that Mr. Arnoff referred to, and
4 if you look at the septic system that is along the
side, if you look at the survey Mr. Arnoff' s
5 comments about 10 feet from the water line, the
proposed plan already has installations 10 feet
6 from this water line. No reason you can' t move
them back parallel. There' s no reason why this
7 structure can' t be moved further back. Indeed, if
you look at the little addition to the footprint,
8 I'm sure the Board remembers what the reason for
that was, that' s for a furnace that couldn' t be
9 down in the basement. Well, guess what, now you
don' t need that. You can move the thing
10 back. You can do it. And that will then be
consistent with the recommendation of the LWRP.
11 Now as Mr. Corcoran' s correctly points
out, that is a recommendation and it' s this
12 Board' s duty to look at the recommendation and
determine what they want to do about it. But it
13 seems self evident that under these circumstances
to require a movement as far away as possible from
14 the water, particularly because you' re in
violation of the 75 foot setback is sensible. And
15 we've heard nothing that leads to believe that
there cannot be some accommodation in that regard.
16 For the Board to the prior LWRP
determination Number 5893, where I believe you had
17 a setback from the bluff and there the LWRP said
it' s inconsistent, you got to move it further
18 back, you got to move it as far as you possibly
can. So which is it going to be? I think it
19 really doesn' t matter one way or another, I just
wish he would be a little consistent in his
20 consistency reviews and tell you which way it' s
going to be. But the long and the short of it is
21 it' s got to be moved back as far as possible, and
I think we have that evidence on the record that
22 can allow you to do that with no violence to the
project. The foundation went 'in at the
23 applicant' s own risk, so there' s no hardship here.
And I think if the Board were to take this
24 recommendation into account and revisit it with
that in mind, which is what the Supreme Court had
25 in mind, it' s no skin off their nose, and then it
becomes much more consistent with the policy and
January 25, 2007
60
1
2 it epitomizes the variances to the extent that --
the last thing that I want to say is that to the
3 extent that this Board determines it' s going to
grant a variance that does fly in the face of a
4 policy of the code, which is to eliminate over
time nonconforming uses, but if it' s going to
5 grant a variance, clearly it should be as small as
possible. And I think that also militates in
6 favor of some movement.
CHAIRMAN DINIZIO: Can I just ask you, I
7 want to give you the opportunity to convince me
that our first decision, which was not this and
8 not that foundation as it currently exists, but we
actually granted a house in that location that it
9 is right now.
MR. BRESSLER: 2 . 6 feet over.
10 CHAIRMAN DINIZIO: Right, we granted on
the original foundation a house. And we
11 considered all that -- I'm just giving you an
opportunity to try and convince me, second bite .of
12 the apple so to speak -- that making that decision
based on the information that we had and now based
13 on the new information that we have, 'which
basically says the same thing that we considered.
14 The LWRP is saying that it is consistent,
certainly we don' t have to rely on that solely,
15 but certainly can agree or disagree with its
findings . How do we then overturn our existing
16 variance that we already granted based on this new ,
information that we have, which is the LWRP?
17 MR. BRESSLER: I think that the LWRP is
flawed as evident as may be, nonetheless, gives
18 the ability to do that. It says it' s consistent
provided it is sited as far back as
19 possible. Now, that requires this Board to do two
things, number one -- three things, but number one
20 is easy. Obviously, you need to have it in front
of you at the time. Number two, we' re going to-
21 consider that LWRP, and we are going to adopt in
substance the recommendation of the LWRP, which is
22 that in these situations structures should be
sited as far as possible back. And that wasn' t
23 before us at the time. It' s before us now.
CHAIRMAN DINIZIO: Can I just say
24 something? I mean, I think in our decision, we
did say basically that we thought that this
25 structure where we were granting it, that' s when
they had the old foundation, was consistent with
January 267, 2007
61
1
2 the laws of the Town and what the hardship that
they presented.
3 MR. BRESSLER: But you did not have before
you the LWRP.
4 CHAIRMAN DINIZIO: Right. But I'm
looking for something in here that says that now
5 we kind of -- we should base our decision on the
LWRP, when it doesn' t say anything about -- say
6 anything more than we already considered.
MR. BRESSLER: It says that it should be
7 as far as possible. Now, I don' t believe that on
the record that you adopted that piece. What you
8 adopted, or what it appears from the decision, it
looked like you went through the balancing test.
9 But you did not look at it through the lens of the
LWRP which says you don' t simply balance. The
10 LWRP says that you push it back as far as you can.
And in reading your decision, I don' t think that
11 this Board had in mind that standard, or if it
did, it didn' t enunciate that standard and say
12 we' re going to filter those four tests through the
standard of it has to be as far back as possible.
13 That' s how I believe it' s now different from the
legal point of view.
14 ASST. TOWN ATTY. CORCORAN: If I may, I
think you' re both right. I think we' re talking --
15 we' re also talking about two different things .
When you talk about move it back as far as
16 possible, there' s two ways to consider that.
There' s one under the variance criteria you' re
17 supposed to grant the minimal variance necessary,
and I think the Board did consider that in
18 granting its variance, what I think Eric is
seizing upon is the LWRP language that says you
19 should maximize the distance from the coastal
erosion line. Now, this project is outside the
20 coastal erosion hazard area, but I think
Mr. Bressler' s point is that there' s room further
21 back on the property to make it further away from
that area.
22 So I think this Board may or may not have
considered erosion and flooding issues in making
23 its first determination. Either way, in making
this determination, it should.
24 MR. BRESSLER: It should. And to the
extent the Board considered it wasn' t reflected.
25 ASST. TOWN ATTY. CORCORAN: It wasn' t
enunciated, as you said.
January 25, 2007
62
1
2 MR. BRESSLER: So in my effort to try to
persuade you, I would say ,that that was a factor
3 which was not addressed by the Board in its prior
decision, and yes, in terms of the balancing test
4 but no in terms of maximizing distance it may not
be in the zone, but you still have to maximize
5 that distance, and I think that' s a factor that
the Board on the record did not take into account,
6 and I think that if the Board adopts this, then
I --
7 BOARD MEMBER SIMON: I would like to ask a
question, slightly different, but are you --
8 something that wasn' t mentioned but I think is
quite relevant is that one of the major factors,
9 as we know, in the original granting of the
variance had to do with the hardship, right, the
10 hardship with regard to having to move a then
thought to be acceptable foundation and when that
11 turned out to be wrong, then the whole thing
opened up. The whole thing opened up, we had a
12 rehearing, and the decision was made that since
there was going to be a new foundation anyway to
13 move it 2 . 6 feet to the east. What you may be
arguing is -- are you, that the Board could at the
14 same time be have considered that since there was
going to be a new foundation anyway, the hardship
15 condition which prevented us from considering
moving it further back as well as to the east was
16 not considered by the Board at that time. And
what your argument is, am I right, in the light of
17 the LWRP consideration is that reminds us that
that' s something we could have and should have
18 done; is that your argument?
MR. BRESSLER: That is another way to come
19 at it because you' re right, you didn' t have the
LWRP in front of you which made that
20 recommendation, and I dare say that because the
foundation is put in was without prejudice, you
21 are free to . consider the argument that you just
enunciated freshly in light of the LWRP. So the
22 answer to your question is, yes, you should have
considered it in light of the LWRP, but you didn' t
23 have the LWRP in front of you, but now that you do
you can consider that argument afresh in light of
24 the so-called consistency.
BOARD MEMBER SIMON: Would you say that we.
25 could have considered moving it further back even
- without the LWRP at the last hearing because of
January 29, 2007
63
1
2 the 175 foot rule? But then I take it your
argument is that the LWRP gives it additional
3 force behind that argument which might have been
taken more seriously had we had that LWRP report.
4 MR. BRESSLER: That is exactly why the
Court remanded it, and it said at one point the
5 Board didn' t have before it the LWRP, and I'm not
going to second guess what the Board may or may
6 not have done had it had that LWRP, whatever it
may say and now we see what it says, whatever it
7 may say, the Board did not have the benefit of
that before it. So they could not possibly have
8 considered that at least on that basis . Now the
Board has the ability and the obligation in the
9 first instance to decide what it will do, and if
it decides to adopt it then it has to decide which
.10 to apply to this particular property. There' s no
argument that document, and you can look at the
11 survey as we did, that the 100 foot doesn' t apply,
the 10 feet doesn' t apply, things have changed and
12 that' s my argument in response to the Chairman' s
invitation to persuade him that something has
13 changed. Something has changed and the very
reason is the LWRP is important is so the Court
14 can consider it. He said it' s not enough that the
Trustees looked at it, and for whatever reason
15 they had, but this Board' s got to look at it. I
think not only would it be consistent with the
16 LWRP to move it back, to be consistent with the
nonconforming use provisions of the code,
17 gradually pushing these things back into further
conformance.
18 CHAIRMAN DINIZIO: Thank you, Eric, and
thank you, Michael, for clearing that up. Anybody
19 else have any questions?
MR. BRESSLER: I would ask that my
20 presentation be incorporated by record.
CHAIRMAN DINIZIO: By all means .
21 BOARD MEMBER GOEHRINGER: My only
suggestion is that I think we should take this
22 testimony today, and since this is an application
that is quite involved, and then discuss it at
23 the --
CHAIRMAN DINIZIO: Mr. Arnoff?
24 MR. ARNOFF: There are a couple of
comments I'd like to make, and I think the point
25 is well taken that the -- first of all, let' s be
very clear. My client put up a foundation to stop
January 25, 2007
64
1
2 erosion, we did it at our own peril. I told the
Board that and clearly it' s not something which
3 this Board should even consider. Whether it' s
there or it' s not there at this point is truly
4 irrelevant to this Board' s determination. And I
don' t want this Board to think that we' re here
5 trying to bootstrap ourselves to that thing. We
agreed in court that that was why we did it, and
6 we did that at our own risk.
Now, having said that, we have a situation
7 here where this Board did consider maximizing the
distance from the water. We heard, and I remember
8 it echoes in my head, Mr. Bressler ad nauseum
going into maximizing the distance from the bluff,
9 why can' t it be pushed backed further, why can' t
it be pushed back further. This Board heard of
10 argument after argument after argument of that
issue. So let us not forget, we certainly can go
11 back to your minutes and you' ll find those
arguments, and they' re there and this Board
12 considered them. They didn' t have the LWRP report
in its hand when they heard that argument, and
13 yes, this Board can revisit that issue again with
that document in hand; however, that document is
14 purely advisory. This Board can disregard it,
adhere to it, modify it, do what this Board wants .
15 And yes, additionally, it would be foolish of me
or anyone to come before this Board and say, well,
16 the Trustees acted, well, the Trustees are an
independent board. We all know that every board
17 in this town is independent. And you certainly
are free to make rulings that are your rulings
18 independent of whatever the Trustees did. I
mention what the Trustees did because I think it' s
19 persuasive, it' s something the Board should have
before it, and it' s something the Board should
20 consider when it determines what it wants to do.
Now, the report of the LWRP Mr. Bressler
21 finds fault with, he finds fault with the
language, this Board is capable of looking into
22 the recommendation; they heard the testimony. By
the way, there is no change. For this Board' s
23 determination, there is no change in fact from
today and when we were before you the last time.
24 Remember, and I think, Mr. Dinizio, you' re right, .
there was a house, there was an existing house, an
25 application came before you, you gave approval,
when they went to remove the house foundation
January 2-1, 2007
65
1
2 collapsed, and they were left with the situation
of coming back before you again. That' s the
3 situation. We're no different today than we were
then. So this Board had in its cannon all of the
4 necessary information it needed to make a
determination. The only thing it didn' t have and
5 the Board and the Court correctly said, it didn' t
have the LWRP so that it could say yea or nay or
6 whatever it wanted to do in regard to the LWRP.
But the question the Board must ask itself is does
7 what is embodied in the four corners of the LWRP
impact in such a manner on what this Board
8 previously decided as to make it or convince this
Board to change its prior determination. That' s
9 really the pivital question, and I submit that it
does not. Thank you.
10 CHAIRMAN DINIZIO: Okay. Does anybody
have anything, any questions?
11 BOARD MEMBER SIMON: I just have a
question for Mr. Arnoff.
12 MR. ARNOFF: Okay.
BOARD MEMBER SIMON: Would you think it' s
13 fair to say that you' re suggesting we should take
the Trustees more seriously, and that Mr. Bressler
14 is saying we should take the LWRP more seriously
since those two entities seem to be in
15 disagreement with regard to this project?
MR. ARNOFF: I don' t think they' re in
16 disagreement necessarily. I think what the
Trustees did was they took the LWRP
17 recommendation and went to the applicant. And
they said, how can we do something to bring it
18 closer and the cesspools were subsequently moved.
So I think if I were this Board I think you should
19 take everything seriously. I don' t think you
should take the LWRP as the Trustees'
20 determination necessarily any -- one more
seriously "than the next. I think you should even
21 take what Mr. Bressler said today as seriously as
you take anything else. I .don' t think anyone,
22 anything requires or deserves greater
consideration. This Board has to separate the
23 wheat from the chaff, that' s its job.
CHAIRMAN DINIZIO: Okay, one more time.
24 MR. BRESSLER: May I speak just 10 seconds
just to that question?
25 CHAIRMAN DINIZIO: Yes .
MR. BRESSLER: I think the statute
January 25, 2007
66
1
2 requires that you take the LWRP a tad more
seriously than the Trustees because that' s your
3 statutory mandate. Whereas, what weight you give
to the Trustees is up to you. So that' s my answer
4 to that, and with that I think the Board ought to
be fairly clear as to what the issues are before
5 it as Mr. Arnoff, and I basically agree on what
the underlying issue is .
6 CHAIRMAN DINIZIO: Okay. All right, is
there anybody else on the Board that would like to
7 make a comment? Add anything else to the record?
Anybody out in the audience? Linda, you?
8 BOARD SECY. KOWALSKI : No.
CHAIRMAN DINIZIO: Okay, then I'd like to
9 entertain a motion that we accept the information
we have and close the hearing.
10 (See minutes for resolution. )
7-----------------------------------------
11 CHAIRMAN DINIZIO: Next hearing is for
William Lehmann and Alice Lehmann. Request for a
12 variance under Section 280-13A (100-31A) based on
the Building Inspector' s July 28, 2006 notice of
13 disapproval which states that the proposed garage
is not a 'permitted use on this vacant property
14 located at 725 Rabbit Lane, East Marion.
Is there anyone in the audience that
15 wishes to speak?
MR. CUDDY: Good afternoon, Charles Cuddy
16 on behalf of the applicant William and Alice
Lehmann. As the Chairman indicated, this is a lot
17 on Rabbit Lane in East Marion. In fact, the
Lehmanns own two lots . They own a lot that' s
18 directly adjacent -- excuse me, directly across
the street. Rabbit Lane is a ten foot wide gravel
19 and dirt path. And the Lehmanns have owned this
property for over 30 years . It' s been used in its
20 current manner, two sides of the street, for more
than 40 years. .
21 Now the question I think is whether it can
be used as an accessory lot. And I would point
22 out to the Board that there are other parcels
adjoining this parcel that have a garage on one
23 side and a house on the other side. The Lehmanns
and all of the people on Rabbit Lane that have two
24 parcels, one on each side, essentially used both
parcels. This parcel has been used as an
25 accessory type of use, and I will put in just a
minute a copy of your Board' s decision in 1976, as
January 25, 2007
67
1
2 an accessory site. There was a swimming pool that
was built upon it that' s now been filled in. The
3 Lehmanns have used this continuously as an
accessory lot. They have what .was shown on the
4 map which you have or a survey, a botchy court.
They have a horse shoe set-up in the back. They
5 have two sheds on it where they keep garden
equipment. They have a barbecue pit. This has
6 been for them part of their existing household as
it is for the other people who reside on both
7 sides of that road.
The road itself is presently owned by
8 Mr. Chase, a corporate association. Parts of this
road though, currently are not owned by the
9 association, but are in the name of the owner of
the lot, which would make it a single lot right
10 across . That' s not true here, unfortunately for
the Lehmanns they have been owned continuously on
11 both sides . What I would like to hand for the
Board is that 30 years ago this was deemed an
12 accessory lot. It' s been used as an accessory lot
continuously by the Lehmanns . And I would like to
13 hand up to you both the property record card to
show the swimming pool was permitted in 1976 and
14 also a copy of the Board' s decision. And since
I'm handing it out up, I will also hand up at the
15 same time the permit of the DEC, which was issued
for this, which is the two-car garage, and that' s
16 been issued just recently. The Trustees have not
acted on this because they refuse to act until
17 this Board acts. So we' re going there next
hopefully.
18 I would just indicate to the Board that it
appears to me from having been to the site several
19 times that this is a use that the Lehmanns felt
was incident to their lot and their prior owner
20 thought was incident to their lot and that is to
use both sides. You' ll note that the smaller side
21 is where the house is, and there' s no room to add
anything to it. The larger lot is this lot, which
22 is approximately 15, 000 square feet, and it faces
on Lake Marion. The garage will be back a great
23 distance from Lake Marion. It will be much closer
to the road. It doesn' t interfere with anyone
24 that' s there.
I would say to you that certainly it
25 wasn' t created by the owner. It' s been there.
There' s very little alternative for them; if they
January 25, 2007
68
1
2 want a garage at all, they have to put it on on
this lot. It virtually has no impact on the
3 neighborhood. Everybody else either has garages
either on their lot or on the adjoining house. So
4 therefore, I would ask the Board to recognize it
as an accessory lot and grant the Lehmanns the
5 proposed garage.
CHAIRMAN DINIZIO: I just have one
6 question, probably not a question, a
clarification. That lot is a building lot. You
7 could build a house on that lot if you so
chose. How would you feel about making it not a
8. building lot? Is there any compelling reason?
MR. CUDDY: Well, I can understand that
9 question. I would hope that if they build a
. garage, they certainly would say that they would
10 not build a house on it. But it occurred to me
that someday in the future, somebody might take
11 down the garage. If the garage wasn' t there,
certainly at that point it would be a buildable
12 lot.
CHAIRMAN DINIZIO: Well, it is now.
13 BOARD MEMBER SIMON: It' s a buildable lot.
MR. CUDDY: It is a buildable lot right
14 now. The Lehmanns and I have had this
conversation and because when you look at it you
15 say wow, that' s a buildable lot. I don't think
they would mind saying that as long as they have
16 the garage there, they' re not going to build a
house.
17 CHAIRMAN DINIZIO: All right.
BOARD MEMBER GOEHRINGER: So that' s a
18 temporary sterilization.
MR. CUDDY: Yes .
19 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: In fact, I was going
20 to ask the question about whether it was a
buildable lot. As a buildable lot, the Lehmanns
21 could, for example, build a house of their own or
they could put it up for sale as a buildable
22 lot. So it comes as a question of what kind of
use of lots is this Board of the Town willing to
23 encourage given the pressure on people building
new houses . Here' s kind of a hypothetical,
24 somebody saw a wonderful buildable lot approvable,
maybe half acre, quarter acre, and they decided to
25 buy it simply to put some kind of an accessory
building on a lot which had no principal
January 25, 2007
69
1
2 structure. I mean, obviously they would need a
variance for that. I guess I'm interested in your
3 comment on that as a policy issue.
MR. CUDDY: Well, I would understand that
4 differently than I understand the Lehmann
situation. The Lehmann' s is somewhat unique.
5 Their lot is directly across, and I'm not talking
about just --
6 BOARD MEMBER SIMON: Right, I
understand.
7 MR. CUDDY: I mean it' s virtually
connected. I mean the road is no more than a
8 driveway when you go down.
BOARD MEMBER SIMON: I know.
9 MR. CUDDY: So I would think in the case
that you' re posing it might be different than in
10 the Lehmann' s case.
BOARD MEMBER SIMON: I was thinking that
11 there might be somebody who would say, there' s an
empty lot; I think I'd like to have a house on the
12 lake; and they say, is it for sale. Well, no it' s
owned by somebody who wants to build a garage on
13 it because it' s opposite his house; I mean, that
would be the issue.
14 MR. CUDDY: But I think here you certainly
could argue. I think I could come in and say to
15 you we might need some setback variances, but we
could put a house with a garage on it.
16 BOARD MEMBER SIMON: Yes . But I'm talking
about an independent --
17 MR. CUDDY: And I'm saying here, they' re
willing to say, at least on the basis as long as
18 they have the garage that they' re not going to
build a house on it. Could someday that happen,
19 yeah, I guess it could, it could happen today. I
mean, certainly we could have been here talking
20 about a house and a garage is on the lot. What
they' re saying is we recognize that. We don' t
21 want to put a house there. We' re not going to put
a house there. Believe me I have had this
22 conversation.
BOARD MEMBER WEISMAN: Mr. Cuddy, have
23 you discussed at all, I mean, on their residential
portion, on that piece of property there' s a one
24 story building there that looks like a cottage.
BOARD MEMBER OLIVA: 22 by 19 .
25 BOARD MEMBER WEISMAN: Yes . It' s being
used as a residential piece. Have they thought
January 2�, 2007
70
1
2 about the possibility of reversing that, of making
that their garage and building a small cottage or
3 something on the other lot?
MR. CUDDY: Only because they like their
4 house that' s there and the cabin cottage has
apparently been used by members of their family
5 during the summer time. And they would like to
keep that, and I understand that.
6 BOARD MEMBER WEISMAN: That' s obviously
really a second dwelling. On the same piece of
7 property which is a preexisting.
MR. CUDDY: They have a CO for that.
8 BOARD MEMBER WEISMAN: It' s fine, it' s a
permitted use. I mean, that' s the other option of
9 course.
MR. CUDDY: Then they would hope to keep
10 it the way it is basically because they have lived
there for many, many years, and they have used it
11 in the fashion that it is presently set up as,
which is the house and the cottage next to it.
12 BOARD MEMBER OLIVA: Where do they put
their cars now?
13 MR. CUDDY: On the vacant lot.
BOARD MEMBER OLIVA: They just drive in.
.14 MR. CUDDY: There' s a little gravel drive
there and they can put a car there.
15 BOARD MEMBER WEISMAN: And they have got a
camper or something there.
16 MR. CUDDY: Right now that' s a trailer
from their son-in-law, Jeff that' s temporarily
17 there. That' s where they put their cars .
BOARD MEMBER 'WEISMAN: Where was the
18 swimming pool? I thought, yeah, they were granted
the right to do it. I thought, hey, they never
19 built it, they built it and filled it in?
MR. CUDDY: Yeah, they filled it in. I
20 guess they either didn' t like it or it became a
nuisance for them.
21 BOARD MEMBER OLIVA: Probably so close to
water as it was they probably had problems with
22 it.
CHAIRMAN DINIZIO: Hold on folks, one at
23 a time here. Jerry, I think you have a question
that' s probably pertinent to this .
24 BOARD MEMBER GOEHRINGER: Town. Attorney
Corcoran, Mr. Cuddy posed a very interesting
25 question. This is a lot down on Marion
Lake. It' s a legal 15, 000 square foot buildable
January 25, 2007
71
1
2 lot which the Board in 1976 granted an accessory
swimming pool, which is no longer on this piece of
3 property. We don' t know if it was in the ground,
above ground, it certainly wasn' t too far down in
4 the ground because irt' s pretty close to water
there. Mr. Cuddy proposes the possibility of
5 legally sterilizing this lot during the period of
time that the construction of a garage, which is
6 an accessory structure, would exist. If the
applicants or subsequent owners in the future
7 chose to demolish this garage, because the garage
would be in the same location that the house would
8 be in based upon the size of the piece --
BOARD SECY. KOWALSKI : They' re going to
9 build the garage. .
BOARD MEMBER GOEHRINGER: They would build
10 the garage, and the garage would be accessory on
another lot, but. only because of the road in
11 between there and their house. The question is,
if we allowed to build it on a conditional basis,
12 conditioned on the fact that when they' re willing
to build the house they would legally demolish the
13 garage with a demolition permit, and then be
granted the issuance to build a house on the site.
14 BOARD MEMBER OLIVA: What if it' s sold
though?
15 CHAIRMAN DINIZIO: I' ll go further than
that and ask. our town attorney if it' s legal for
16 us to grant an accessory structure on a piece of
property without a principle.
17 ASST. TOWN ATTY. CORCORAN: That's
contrary to your prior decisions. I mean, the
18 most recent was a couple years ago you had someone
come in and want to build a tennis court on a
19 piece of property without a principle structure
and you said no. If you want to change that
20 decision, that' s something you should think
about. But I don' t see how this particular, I
21 would assume you would propose to do it in
covenants of some kind that would be recorded.
22 But essentially you're saying, we want to have an
accessory structure by itself until such time as
23 we want to build something else. And that would
be pretty much true of anybody who came in.
24 MR. CUDDY: Except that this lot has been
recognized -as an accessory lot, and that's the
25 difference.
ASST. TOWN ATTY. CORCORAN: It' s
January 25, 2007
72
1
2 recognized as an accessory lot?
BOARD MEMBER SIMON: What does the code
3 say about accessory lots?
BOARD' MEMBER OLIVA: It' s a buildable lot.
4 CHAIRMAN DINIZIO: They put a prior
swimming pool on it granted by this_ Board.
5 MR. CUDDY: Itself is a building lot but
we' re asking that we only have a garage on it as
6 opposed to a house and a garage.
BOARD MEMBER OLIVA: I' ll be honest with
7 you, I have great difficulty with agreeing with
you to put just an accessory garage no matter what
8 the covenants are. It is a buildable lot and
there are too many if, ands or buts that can be
9 put into it. I feel it will run into problems
later on. The intentions might be fine and I'm
10 not saying that intentions are not. But things,
circumstances sometimes change, and then there
11 will be a garage on a lot that is really a
buildable lot, and it' s used as an accessory --
12 no.
MR. CUDDY: The reason obviously they' re
13 doing it is because they can' t put one on the lot
with the --
14 BOARD MEMBER OLIVA: I understand that but
they have been parking their cars over there
15 anyway.
MR. CUDDY: But it' s my point to the Board
16 is it' s been used as an accessory lot. This is
not just a lot that is just off by itself and
17 somebody comes along as was posed -- this was a
lot -- this is lot that has been used continuously
18 as an accessory lot. It' s used by these people on
a recreation basis all the time. It' s used to
19 keep their equipment, their farm or garden
equipment actually. It' s been used by them to
20 park their cars on it. And it' s been used by this
Board in 1976 granting a swimming pool on that
21 lot, recognizing that it' s an accessory lot. The
history of this is very different than most
22 applications . -
BOARD MEMBER OLIVA: I understand that but
23 still and all that was 1976, and this is 2007 .
Times have changed, rules and regulations have
24 changed.
BOARD MEMBER WEISMAN: Thirty years ago
25 was a long time.
- - ASST. TOWN ATTY. CORCORAN: You may or may
January 25', 2007
73
1
2 not still have the ability to have a swimming pool
on there. Because I assume you'd take the
3 position that that ZBA decision runs with the ,
land. But you have removed the use. So that
4 would be a more complicated question. But a new
accessory use is open to discussion with this
5 Board. That' s obviously why you' re here.. It' s
not in their practice.
6 BOARD MEMBER WEISMAN: Is there a '
difference, Keiran, between recognizing something
7 as an accessory lot, as Mr. Cuddy' s pointing out,
and granting the right to place an accessory
8 structure on a --
ASST. TOWN ATTY. CORCORAN: Well, we don' t
9 really know of such thing as an accessory lot. I
think he' s using that as a descriptive term, ,I
10 think.
MR. CUDDY: Yes .
11 BOARD MEMBER WEISMAN: I think it' s an
accessory use.
12 ASST. TOWN ATTY. CORCORAN: Right. We
look if you have preexisting, nonconforming uses,
13 the use has to be continued. There' s no such
preexisting, nonconforming use for an accessory
14 garage on this lot, if that' s your question.
BOARD MEMBER GOEHRINGER: What we have
15 done is asked people to merge their properties,
okay. The question is --
16 ASST. TOWN ATTY. CORCORAN: Or you can
say, we' ll allow you the garage but you' ll have to
17 sterilize the lot forever, and say we' ll only have
this garage and you will have to do C and Rs that
18 run with the land like those that did not exist
for House of Daige. And I expect that that would
19 severely diminish the value of a single and
separate building lot though.
20 BOARD MEMBER SIMON: I have a question
about this . What you call an accessory lot, how
21 is an accessory lot different ,from an adjacent
vacant lot that you happen to own that you use for
22 your children to play there and you put things
there; is that also an accessory lot?
23 MR. CUDDY.- If you own the lot, and in
this case it' s been used that way, I have to
24 describe it as an accessory lot.
BOARD MEMBER SIMON: I'm wondering, is
25 there any legal significance to the term
"accessory lot" ; does it distinguish it from a
January 26, 2007
74
1
2 vacant lot that you, yourself own?
MR. CUDDY: No, as Counsel points out, I'm
3 just using it generically.
BOARD MEMBER SIMON: So it' s not part of
4 your argument?
CHAIRMAN DINIZIO: Certainly the fact
5 that there' s a right of way between these two lots
makes it different than an adjacent lot.
6 BOARD MEMBER GOEHRINGER: Contiguous lot.
MR. CUDDY: It' s not contiguous . '
7 CHAIRMAN DINIZIO: Right. This lot could
be in Greenport and the other lot could be where
8 it is right now.
BOARD MEMBER WEISMAN: I don' t think they
9 would want to park there, though. It would be a
bit of a walk.
10 CHAIRMAN DINIZIO: Well, we did have that
kind of situation in Orient with the tennis court.
11 They were a little bit a ways . It wasn' t just
across the street. It was across the street and
12 caddy corner.
MR. CUDDY: Maybe if you wouldn' t mind.
13 that my client would be willing, remarkably
somewhat, to do exactly what was posed, and that
14 is to covenant that this would only be used for
the purpose of a garage and not for a house.
15 That' s not my advice, but I think -- I have
discussed this question with them. I want them to
16 put it in writing so_ we all would understand it.
But they may very well be willing to do something
17 which certainly has benefit to the community
because the density is not there anymore. And no
18 one can complain that you could put a house there
and you could have another family there. They
19 actually have thought about that, more than I have
thought about it. And I think they would be
20 willing to probably say that we will use this only
for this purpose and not for any dwelling purpose
21 at any time and the covenant would run with the
land.
22 BOARD MEMBER WEISMAN: So that would be
set aside.
23 BOARD MEMBER GOEHRINGER: The question
would be, Mr. Cuddy, as we had with the prior
24 decision, would they be willing to covenant that
they would only sell this and it went with the
25 house?
BOARD MEMBER SIMON: It would go with the
January 26, 2007
75
1
2 land, wouldn' t have any choice.
BOARD MEMBER OLIVA: It could only be a
3 garage.
MR. CUDDY: They would have locked
4 themselves into that.
BOARD MEMBER WEISMAN: There is no
5 building lot there.
BOARD MEMBER GOEHRINGER: So what we would
6 have then is really an artificial merger.
CHAIRMAN DINIZIO: Why don' t we take a
7 look at that. Can you come up with something by
the next meeting? We shouldn' t close this .
8 MR. CUDDY: I certainly would pose to you
that we could do that. And we could certainly .
9 covenant that. I just want them to fully
recognize that that' s the proposal .
10 BOARD MEMBER OLIVA: The ramifications .
MR. CUDDY: They don' t seem to be troubled
11 by that.
ASST. TOWN ATTY. CORCORAN: Can you merge
12 a lot though, that' s not contiguous with another
lot?
13 BOARD MEMBER GOEHRINGER: I think you can
because it' s a private road; it' s not a public
14 thoroughfare.
BOARD MEMBER SIMON: But they don' t own
15 the road.
BOARD MEMBER GOEHRINGER: They have a
16 right of way over it.
BOARD MEMBER SIMON: But that' s not owning
17 it.
BOARD MEMBER GOEHRINGER: I understand.
18 But having a right of way over it gives them much
more than just a person like myself or yourself
19 that rides down it. Okay.
ASST. TOWN ATTY. CORCORAN: I don' t know
20 how you would enforce such a thing. If there' s
not going to be any further building on it ever, I
21 mean the only time the Town would ever find out
that one was transferred independent of the other
22 is if someone came to try to build on it.
MR. CUDDY: If you were putting a covenant
23 on it, and it was being sold, there' s absolutely
no question that ' the covenant would come up and
24 recognize that it' s not the intended use.
BOARD MEMBER WEISMAN: Only if it' s filed
25 in Suffolk County.
BOARD MEMBER GOEHRINGER: Filed and
January 25, 2007
76
1
2 recorded.
BOARD MEMBER WEISMAN: Filed and recorded.
3 That' s where we came into problems in previous
cases where decisions were made and it wasn' t
4 filed.
ASST. TOWN ATTY. CORCORAN: It' s an
5 interesting question.
BOARD MEMBER WEISMAN: If your client is
6 willing to entertain that, I agree, Jim, I think
we should hold the hearing open until you can find
7 out if that' s appropriate, and get it in writing
and we can consider it on that .basis, which is
8 different ,from what we're able to consider today.
CHAIRMAN DINIZIO: The problem with that
9 is it would have to be some form of trust between
you and us because we would have to insure that
10 that' s done before the permit' s issued.
ASST. TOWN ATTY. CORCORAN: . It would be a
11 condition.
MR. CUDDY: It would be a condition of
12 your decision. I would have to do that and I'd
have to get it back to your counsel on to you.
13 CHAIRMAN DINIZIO: Okay. So we' re
willing to leave this hearing open until such date
14 that he wishes to come back, .right?
BOARD SECY. KOWALSKI: Do you want
15 February or March, Mr. Cuddy? February would be
the 22nd and March is the 29th.
16 MR. CUDDY: Can I have for the March
meeting? I mean, I can get it back but --
17 CHAIRMAN DINIZIO: ,We would still have to
view it and agree with it and then close the
18 hearing.
MR. CUDDY: Okay.
19 CHAIRMAN DINIZIO: Okay.
BOARD SECY. KOWALSKI.: Put that you want
20 to start at 9 : 00 or 9 :30 that day?
CHAIRMAN DINIZIO: Whatever is .agreeable
21 to Mr. Cuddy, he has his choice.
BOARD SECY. KOWALSKI : 9 : 30 or 9 : 00?
22 MR. CUDDY: 9 : 00 .
BOARD SECY. KOWALSKI: We just need
23 someone to offer the motion' on that.
BOARD MEMBER GOEHRINGER: I' ll offer it.
24 CHAIRMAN DINIZIO: I' ll second.
(See minutes for resolution. )
25 -------------------------------------------------
CHAIRMAN DINIZIO: Next application is
January 25, 2007
77
1
2 for Joseph E. Gulmi and Susan Braver. This is a
resolution to receive testimony to be offered at
3 this time, and a resolution to grant the
applicant' s request for an adjournment to March
4 29, 2007, 9 : 35 a.m. with required mailings and
sign posting by applicants . This is an
5 application requesting variances under Sections
280-13 formerly 100-33, and 280-105, based on the
6 Building Inspector' s December 11, 2006 notice of
disapproval .
7 CHAIRMAN DINIZIO: Do I have a motion?
(See minutes for resolution. )
8 -------------------------------------------------
CHAIRMAN DINIZIO: The next hearing is
9 for the East Marion Fire District. Public hearing
reopened for the purposes of receiving testimony
10 relative to the projected telecommunications
coverage for tower and antennas over 80 feet. I'm
11 going to read this whole thing: The variance
under Section 280-69 (100-162A3, A5) is requested,
12 based upon the Building Inspector' s July 25, 2006
Notice of Disapproval, for the construction of a
13 proposed wireless communication/telecommunications
tower on property owned, leased or otherwise
14 controlled by a special district approved by the
commissioners of the special district. The
15 proposed tower will exceed the code limitation --
with a height greater than ten feet above the
16 average height of buildings within 300 feet of the
facility, or if there are no buildings within 300
17 feet, these facilities shall not project higher
than 10 feet above the average tree canopy height
18 in that radius measured from ground level . If
there are no buildings within 300 feet of the
19 proposed facility site, all telecommunication
towers shall be surrounded by dense tree growth to
20 screen views of the facility in all directions .
Location: 9245 Main Road, East Marion.
21 Does anyone wish to speak?
MR. BOYD: Mr. Chairman, Members of the
22 Board, as you are aware, this is an application by
the East Marion Fire District for a 126 foot tower
23 upon which will be a fire service antenna. This
variance as we look at it on the Board' s motion to
24 receive additional evidence as to factors that
made the commissioner' s decision to determine that
25 120 feet was the minimum height it would need to
have for coverage. At the last session we had
January 29, 2007
78
1
2 testimony from Chief Wallace of the fire
department, who spoke- about the present problems
3 they were having with the 450 megahertz radio
frequency that all of the fire departments on the
4 north fork and most of the fire departments in the
.County of Suffolk are in the process of
5 installing.
I have with me today two, other
6 commissioners of the fire district, Mr. Wallace
and Mr. Anderson. If you would like, I would have
7 Mr. Wallace also testify as to the present
problems they are having with regard to the 450
8 megahertz communication.. And after that I would
have a series of questions for Mr. Scheidel. If
9 you feel that Mr. Wallace' s testimony would be
cumulative, no assistance at this time, I am
10 willing to dispense with that. If you would like
to take a moment and listen to Mr. Wallace.
11 CHAIRMAN DINIZIO: Sure.
MR. BOYD: Bob?
12 MR. WALLACE: Thank you. Recently, a few
weeks ago, we had a rescue there was a man down on
13 the beach, fall fishing in East Marion. We had no
radio communication. The man had cardiac arrest.
14 We have a bad problem. On the propagation maps,
which you can see, 80 foot would barely get us to
15 where we were. We still have no communication.
The higher the tower, the better communication we
16 will have.
CHAIRMAN DINIZIO: Where was this?
17 MR. WALLACE: Rocky Point Road, you go the
steps and walk the steps, it' s probably about the
18 highest point.
CHAIRMAN DINIZIO: You' re not that far
19 away from the firehouse?
MR. WALLACE: No, we' re not that far at
20 all .
CHAIRMAN DINIZIO: As the crow flies any
21 idea?
MR. WALLACE: Maybe, probably as the crow
22 flies a mile.
CHAIRMAN DINIZIO: Okay, not five miles,
23 not Plum Island.
BOARD MEMBER SIMON: Because of the bluff .
24 MR. WALLACE: Because of the bluff .
CHAIRMAN DINIZIO: Let me ask you this.
25 question, at 120 feet, would that work?
MR. WALLACE: It would, go to the
January 2V, 2007
79
1 ,
2 propagation map it shows.
CHAIRMAN DINIZIO: We' ll have to hear
3 that from the expert but in your opinion, you
would feel safe?
4 MR. WALLACE: Yes.
CHAIRMAN DINIZIO: What about 100 feet?
5 Just your opinion, Bob?
MR. WALLACE: My opinion, I think it would
6 be close.
CHAIRMAN DINIZIO: Do you have anything
7 else? Anybody have any questions of Mr. Wallace?
Thank you.
8 BOARD MEMBER OLIVA: I believe Mr. Boyd
had mentioned that you were having interference
9 too because of the high. megahertz from other
communities to the west; is that true?
10 MR. WALLACE: On low band there' s some
interference, yes.
11 BOARD MEMBER OLIVA: But not high band?
MR.. WALLACE: High band, I haven' t used
12 high bands that much.
BOARD MEMBER OLIVA: You don' t have that
13 installed as of the yet?
MR. WALLACE: Yes, we do. We have
14 portable radios in all the vehicles and the
Chief' s vehicles for communication.
15 CHAIRMAN DINIZIO: So you' re saying
currently at the height you' re at now, you' re
16 having trouble with the new technology. What is
that height?
17 BOARD MEMBER OLIVA: 50 feet, 60 .
BOARD MEMBER SIMON: Are there other
18 places that have been tested around town to see
whether they' re also inaccessible?
19 MR. WALLACE: Yes . We took the new high
band radios at one firehouse and sent a truck down
20 to Truman' s Beach to see and we failed to talk to
them. Truman' s Beach is about a mile, two, three
21 miles down the road.
BOARD MEMBER WEISMAN: It' s pretty clear
22 50 feet is too low.
CHAIRMAN DINIZIO: Would you be losing
23 that if you went from 120 to 100; I mean how is
that?
24 MR. WALLACE: 120 down to 100, I don' t
know how much we would be losing.
25 CHAIRMAN DINIZIO: But that distance is a
-pretty flat distance, there' s not a lot of hills
January 25, 2007
80
1
2 involved there?
BOARD MEMBER WEISMAN: It' s spelled out
3 right here.
CHAIRMAN DINIZIO: But I'm looking at a
4 red dot. What is the distance, tell us, because
we' re all familiar with East Marion, Orient, that
5 you would be using these radios commonly. In
other words, even during say if you had mutual aid
6 help Greenport, help Orient, God forbid something
happened at Plum Island, would you gain anything
7 from this 80 to --
MR. WALLACE: Because we have our own
8 frequency, we have to talk back to our antenna,
and they have to talk back to us .
9 CHAIRMAN DINIZIO: So at 80 feet are you
going to be able to talk to Orient?
10 . MR. WALLACE: It' s a possibility, I'm
really not sure.
11 BOARD MEMBER OLIVA: 80 feet, I really
don' t think so.
12 CHAIRMAN DINIZIO: We' re going to -ask you
in a minute. I wanted to get someone who lives
13 with the technology sometimes gives you a better
feel when they' re going out at two in the morning
14 what the problem is and what they' re comfortable
with. Rescues out in the bay, say someone was
15 hurt at Bug Light, would you normally get called
on a call like that?
16 MR. WALLACE: Yes, we would.
CHAIRMAN DINIZIO: Mutual aid more than
17 likely, it' s Orient.
MR. WALLACE: Right.
18 CHAIRMAN DINIZIO: Ram Island could be a
problem say?
19 MR. WALLACE: Back side of Shelter Island,
that area, Southold, that could be a very big
20 problem.
CHAIRMAN DINIZIO: I don' t see you go
21 into the Sound very much as far as dropping your
boat in.
22 MR. WALLACE: Depends on how rough it
is . You cover yourself first before you go get
23 somebody else.
BOARD MEMBER OLIVA: I think Orient' s gone
24 in the sound.
MR. WALLACE: But if it' s just too rough,
25 too dangerous, you' re not going to go.
CHAIRMAN DINIZIO: I'm just concerned
January 2' , 2007
81
1
2 about what you guys consider your area coverage;
you'd go into the Sound?
3 MR. WALLACE: Yes, we'd go into the Sound.
CHAIRMAN DINIZIO: Say this gas barge,
4 you'd be there?
MR. WALLACE: Yes, we would.
5 CHAIRMAN. DINIZIO: That' s all I have.
Anybody else?
6 BOARD MEMBER SIMON. No further questions .
MR. BOYD: Next person I'm going to ask to
7 testify here is .going to be Mr. Scheidel . I think
you are acquainted with Mr. . Scheidel from past
8 experience, I would like for him for the record,
from his experience, and what he does and the
9 number of installations that he' s been involved
in. So we, can be comfortable with his expertise
10 and then after that I'm going to ask for an
explanation of this high band system, vis-a-vis
11 the low band with .the use of from what I
understand we had questions about interference
12 from the west, and so forth. That' s a substantial
problem that we had with the low band. He can
13 also explain further the propagation maps that you
have. And it will also go into the question that
14 Mr. Simon had at one of our last meetings where I
think there might have been a misunderstanding
15 that, for example, if Southold would be called on
mutual aid to East Marion that we in Southold
16 would be able to talk through the East Marion
antenna; that' s not the case. We would have to be
17 able to talk back to our antenna here in Southold.
And conversely, East Marion would have to be able
18 to talk through their antenna, regardless of where
they' re performing a mutual aid task. But we' ll
19 let Mr. Scheidel explain that in his inimitable
style. He has the technical expertise. I'm just
20 a practical guy who talks on the radio and here' s
how it works .
21 MR. SCHEIDEL: What am I some kind of
nerd?
22 BOARD MEMBER WEISMAN: That' s a self
description, nobody here said that.
23 MR. SCHEIDEL: You know, in high school
the pocket protector people, this is what we turn
24 into.
Let' s look at the coverage maps first. I
25 am now proud to say .I have had Eastern Long Island
Trauma Center for eight years . Prior to that I
January 25, 2007
82
1
2 was involved in public safety and emergency
communications for a decade, so my personal
3 experience is now pretty extensive. Eastern, my
company, has implemented public safety radio
4 systems for every major fire department, police
department on the eastern end of Long Island.
5 We' re Motorola' s number one subcontractor. We now
maintain E911 for the whole east end of the
6 island, and we' re actually now involved, I just
recently got dragged into the debacle in Nassau
7 County, where you may have heard about where they
went and purchased a new radio system, and hadn' t
8 figured where they would hang the antennas for the
14 sites they needed. For some reason they seemed
9 to think, hey, we'd go to X and say, well, it' s
okay for us to put our antenna up there, right.
10 And the answer was, well, no because we gave the
rights to that site away to a third party. In
11 some cases it' s a carrier or in some cases it' s a
businessman who leases that site out, and the
12 assumption was made in Nassau that they could hang
antennas there without any problem, and it turned
13 out to be a little bit of a problem.
But the bottom line is public safety
14 communication is near and dear to my heart. I'm
also a volunteer for Suffolk County Fire Rescue,
15 and I manage the amateur radio emergency service
for all Suffolk County. Let it be said, I like my
16 radio. That' s really what I do.
The coverage maps, I guess the last time
17 we got together, you asked that I run it at
different heights .
18 BOARD MEMBER OLIVA: Right.
MR. SCHEIDEL: At this point what you've
19 got is three different representations . One at
120 and two lower. And you can see just based by
20 the colors, the colors speak to the coverage, and
you can see, if you just take, draw a circle with
21 a compass or use the bottom of a pole, you can see
that there' s an incremental difference every time
22 the height changes to a maximum of about 0 and 20
is where it seems that the coverage is what I
23 would say adequate for what East Marion wants to
accomplish. Which we have spoken to earlier, they
24 would like to have that hand-held coverage across
that whole fire district for the simple reason
25 that that' s how you get to talk back to your
commander.
January 26, 2007
83
1
2 Now, you know the height can vary greatly.
If you were in perfectly flat terrain and no
3 basements and no trees, let' s say you were going
to build a radio system for the fire department in
4 the Arizona desert. How high do you think you' d
need that antenna to be? Guess what, I wouldn' t
5 need 120 feet. Because there' s nothing around.
There' s nothing there. No trees . How tall is the
6 biggest tree in a desert? Twelve feet.. Cactus
doesn' t grow to 65 feet. So it' s almost like a
7 cartoon form of this is what the difference in
height represents . I put together a little -- I
8 didn' t want to go crazy, bring my projector and
everything. So I put together a little something
9 in terms of discussion for you that addresses
whatever outstanding issues there are. I'm going
10 to hold on to one of these.
Basically we were just going to do a quick
11 review for the need for height but I think the
desert versus Long Island story kind of gives you
12 a feel for what that' s all about. We did want to
spend a little time on receiver versus transmitter
13 of a portable radio. We want there to be a clear
understanding of the repeater system and the
14 difference between this .particular transmitter
site versus what we apparently are stuck with in
15 terms of radio that you can strap on your belt.
I' ll also go over some of the other fire
16 department installations I've been involved with
and show you what some of those heights look like.
17 Quick review because we have been through this a
couple times. The basic rules of radio
18 communication as it works for fire department
radio systems design is like, the simple
19 explanation is, if you take a laser pointer and
you were to go to the top of your tower structure,
20 in a perfect world you'd be able to shoot the
laser pointer, and at every single radio you want
21 to talk to. That' s the definition of line of
sight. There are certain things you can never
22 talk through reliably, one of them is dirt. An
example of being out over the edge of the cliff is
23 a perfect example. So if you can visualize in
your mind the line you have to draw, and the
24 person standing on the beach with the radio, and
where the antenna is, if the edge of .the cliff is
25 the edge of the piece of paper, it' s clear to see
why the radio doesn' t work right because
January 25, 2007
84
1
2 fundamental of radio, you can' t talk through dirt.
Everything in the air we breathe
3 attenuates radio signals. The only place radio
signals are not attenuated is space, and a perfect
4 vacuum. There a couple of watts can travel
hundreds of thousands of miles, which is why
5 satellites are very effective, unfortunately
they' re very expensive and very hard to control --
6 subject of a different meeting -- bottom line is
everything around us attenuates radio waves. The
7 best thing you can do is eliminate whatever
attenuators there are. Once again, referring back
8 to the sight, between you and the radio
transmitter/receiver that you plan on using. The
9 elevation of the antenna is how is how you ,get
over it and the cliff example is the best one I
10 can give you.
Receivers versus transmitters. A
11 transmitter as used in a repeater or even in a
base station like a taxicab uses, you can do
12 things like crank up power of a transmitter, just
like if you want to make your stereo louder, you
13 can walk over and turn up the volume. Now the FCC
puts limits on what you' re allowed to do and what
14 you' re not allowed to do, but there' s things you
can do in terms of engineering a radio system to
15 increase the outward power load. The piece of the
equation you can' t change is what' s in your hand,
16 for a lot of reasons . The simplest would be how
big a battery pack are you going to carry. If I
17 were to strap a small gasoline engine on my back
and crank it up every time I wanted to use it, I
18 could have that radio generate a lot more power.
But if I want a small portable package that I
19 could reliably use at a fire scene, I could have
something that' s easily mobile and easy to use and
20 easy to carry, and that' s the limitation of the
hand-held radio. So to make up for that it all
21 comes back to the antenna height equipment. If I
have a fixed amount of RF energy that I'm allowed
22 to generate not just because of the size of the
radio, the FCC also has rather strict limits on
23 how much energy I'm allowed to put next to my
mouth, remember the big old cell phones in the
24 bags? I haven' t seen one of those in a while
because the FCC figured out it wasn' t a good idea
25 to have all that high frequency energy in that bag
so that' s why they don' t exist anymore. The small
January 26, 2007
85
1
2 phones we now carry on our belts makes about less
than 15 percent of the energy that those little
3 bag phones used to make. So that' s a good thing
for us. We don' t have to worry about it. The
4 downsize though that means the sites you use or
the transmitter equipment you use at the central
5 site, repeater site, has to be that much more
capable of being able to listen for that smaller
6 transmitter that much better.
Other antennas, these are some -- believe
7 me not all, I didn' t want to bore you with the
gory details of everything I've ever worked on or
8 thing I've ever done, but these are some of the
names and locations that you might recognize and
9 these are either ambulance, police or fire
systems. There' s no commercial enterprises
10 mentioned in this whatsoever. These are towers
that I know of that I personally have been
11 involved in that represent either fire, ambulance
or police and.you' ll recognize a lot of the names .
12 I left off anything out here in the north fork
because I figured we already know about those.
13 We' re all involved in them to some extent. So,
the chart kind of speaks for itself. Notice it' s
14 all in the same approximate realm of what we' re
trying to do. Plus or minus 10, 20 feet here
15 because on Long Island given the geography we have
to work with and the policy and the wild terrain,
16 that' s the number you consistently end up with,
and the arithmetic supports that..
17 Just to let you know how those coverage
maps are derived is actually a computer program.
18 I don' t actually sit there and draw them. But you
actually tell the computer program which specific
19 geography you want to cover, it pulls mapping from
U. S .G.S . , U.S. Geological Survey. It actually
20 goes and gets that topography map and loads it in
the program. Then it takes the specifics of the
21 portable radio, the antenna, the location, and
then I change the variable called height, and it
22 redraws the picture. That' s how the computer
program works .
23 Beyond that, there was some question to
cover of the thing that Ed brought up. The issue
24 of should each department have their own antenna.
When a fire department goes out to mutual aid,
25 when we design a radio system specifically keeping
in mind that the fire district they cover is not
January 26, 2007
86
1
2 the only place they're going to be expected to
perform. We try to design, and the FCC even in
3 terms of creating a license for the .-fire
department, looks at what is the neighboring space
4 that that fire department may have to respond to
and thus we respect mutual . aid. So when East
5 Marion mutual aid would typically be one or two
departments in every direction. When we
6 engineered the radio system deputy and we go to
the FCC and we say, what does the area coverage
7 have to be, we take that into account. So when we
try to place the antenna and feel the antenna
8 system out, we try to accomplish that. What does
that have to do with every other department?
9 Well, if East Marion goes .to Orient, East Marion' s
chiefs, their command is still East Marion. They
10 want to talk back and call for extra resources
from their home district department, which is East
11 Marion. So they' re in Orient for mutual aid or
even as far as Plum Island, they want to have the
12 ability to talk back to their command. They can' t
use Orient' s tower to do that because Orient uses
13 Orient' s tower to talk to Orient' s command, just
as Southold police talks to Southold police
14 dispatcher. Right, they cover the whole town of
Southold but they don' t try and talk to Suffolk
15 County. If Suffolk County comes in here -- for
instance, I' ll use a more appropriate example,
16 when Suffolk County helicopter comes in here
there' s a channel that they have with the
17 helicopter that allows them to talk locally to
Southold because they know that Southold doesn' t
18 have the capability to talk to Suffolk County
system. Why would someone in Southold try to talk
19 back to the transmitter that would be Yaphank?
Talk to the helicopter that' s up over your head.
20 And that' s the whole concept of how you build the
radio system to the coverage area that you need to
21 mutual.
There' s nothing else unless I'm missing
22 something. Oh, let' s talk about low band a little
bit. It' s not just low band fire communication.
23 It' s low frequency communications in general that
with the advent of microprocessor based things
24 like -- and I' ll give you a simple example,
microwave oven in your home. Your microwave oven,
25 the fact that you hit a button and it' s going to
run for a couple of minutes because you told it
January 2�, 2007
87
1
2 to, well, how does it know to do that because
there' s a microprocessor in the oven. All
N 3 microprocessors use a clock to operate with, in
other words, how does it know how to count off the
4 seconds to equal the minutes of what you set the
microwave to? Those pieces of technology all make
5 our interference., radio frequency interference,
even these things we ,carry around. Everything
6 today is what' s known to the FCC as a Part 15
device. If you ever open the first page of any of
7 these little gizmos you buy these days whether
it' s a PDA or your Nextel or cell phone, right
8 around Page 1 or Page 2, it tells you what Part 15
means . In the old days decades ago, the FCC spent
9 a lot of time and they would put a lot of effort
into making sure that all the manufacturers of any
10 of every piece of electronic equipment that they
never interfere with each other. Then they
11 figured out that . that was a really expensive thing
to do. So then they came out with this terrific
12 thing called Part 15, which basically means you
can build whatever you want but it' s on you the
13 user to make sure it doesn' t interfere with anyone
else. Simply put, if my phone interferes with
14 Ed' s phone, it' s up to Ed and I to figure it
out. It' s not up to the FCC anymore. What does
15 that have to do with communications as a fire
department? Simply put, those devices are all
16 around us like microwave ovens, and VCRs and
Nextels, all emit that RF interference. They' re
17 all Part 15 devices. So how do you somehow
mitigate the potential of that interference? You
18 move away from it, just like Ed and I would move
away from each other. The whole concept of moving
19 fire departments to higher frequencies, you' re
moving away from it. Because those processors in
20 all these devices, over time, will they go faster
and will they make more RF energy and higher
21 frequencies? Yes . Probably not in the time frame
that we have to worry about in the fire service
22 today. So that' s why you move to high density.
Because all that interference, all that mandated
23 electronics all resides down around the same band
where the old low band fire service radio system
24 was and still is in some cases; that' s why we move
to high density.
25 BOARD MEMBER SIMON: What are the
frequencies, the numbers of the frequencies of the
January 26, 2007
88
1
2 low band?
MR. SCHEIDEL: Low bands is 46 .46
3 megahertz . UHF high frequency is usually between
450 and 490 .
4 BOARD MEMBER SIMON: What is the frequency
of a microwave oven?
5 MR. SCHEIDEL: 46 . They also have --
there' s a thing called band pass and band width,
6 it' s not that they make a specific signal or
specific frequency, they do something called
7 raising noise, which is if you look at it on a
scope it monitors radio , sequencing signals, you'd
8 see huge splashes of energy that fall in that same.
place as approximately 40 46 dot. Simple example
9 of that would be, if you wear your pager, your
Logan fire pager and some type of cell phone on
10 the same side of your belt, a lot of times when
your phone rings, the pager will go off . When the
11 pager goes off, your phone rings and no one' s
there; or worse than that, neither one of them
12 work because they' re so busy thrashing amongst
themselves because of that Part 15 issue, while
13 they' re making noise, how do we know they' re
making noise? We don' t know that except they stop
14 working.
BOARD MEMBER SIMON: Just for comparison
15 and no relevance to this hearing, what is the
frequency of television, VHF?
16 MR. SCHEIDEL: VHF television is from 50
megahertz up to about 100 .
17 BOARD MEMBER SIMON: Okay. So that' s even
lower.
18 MR. SCHEIDEL: That' s VHF.
BOARD MEMBER SIMON: Right, FM radio is
19 what I mean?
MR. SCHEIDEL: Right. When you go above
20 Channel 6 you go up to the 250s and 300 . I can' t
believe I knew that. Actually UHF, where we put
21 fire departments now, remember if you have an
older television at home, after Channel 13 it was
22 that other dial?
BOARD MEMBER OLIVA: Right.
23 Mg. SCHEIDEL: UHF it went from like 14 to
83 . Did you notice that Shirley, they went from
24 14 to 60; then they went from 14 to now I think it
stops at something below 60? That' s because
25 slowly public safety, they're running out of
channels, those channels weren' t used, some of
January 26, 2007
89
1
2 them were educational television. The FCC is
starting to migrate those people downwards and
3 give that spectrum back to public safety and
communications. In fact, the repeater that East
4 Marion would use, that frequency used to be
something like channel 71 . So all that spectrum
5 is slowly coming back.
BOARD MEMBER WEISMAN: I have a question
6 about these propagation maps . I have in front of
me, I just sketched out the diameter of the green
7 area versus the blue area, the difference between
100 feet and 120 feet in terms of the radius, and
8 I don' t have any measuring device other than my
finger, but, if you could approach and just take a
9 look at these two things and the diameters, and
then interpret verbally what the difference is in
10 terms of miles, let' s say. '
MR. SCHEIDEL: You' ll find the diameter of
11 the actual circle isn' t as significant as the
change in the shading of that line. You see how
12 the shading changes from green to blue and yellow
to green? That' s the difference. You watch the
13 Verizon commercials -- "do you hear me now?" And
he takes a few steps . There' s a significance to
14 two steps because if you were to blow this up to
five by six feet you'd see that defining line
15 be,tween the change in the color shading _gets
greater. And that' s the difference between can
16 you hear me, can you hear me.
BOARD MEMBER WEISMAN: So it' s a matter of
17 scale.
MR. SCHEIDEL: It' s not just scale -- back
18 to the attenuators again and the distance and the
things between you and the antenna, and the
19 picture this small, although if you were to make
acetates out of this, you can actually turn this
20 into plastic, like one over the other, it' s a lot
easier to see -- I have to actually try that.
21 You'd probably be surprised to see, the difference
it gets kind of pixilated, you can see over here
22 where there' s no coverage. That' s the real
difference. Look in the difference in Plum
23 Island. See how much difference there is here and
here. You have no coverage on this one there, and
24 on this one it starts to turn blue. And what is
that 10, 20 feet?
25 BOARD MEMBER WEISMAN: That' s what I'm
asking really to interpret. Let' s say at this
January 2t7, 2007
90
1
a
2 height and this height, the range of
communication. How does it diminish?
3 MR. SCHEIDEL: I would say probably 10 to
20 percent, 10 to 15 percent in that area.
4 BOARD MEMBER WEISMAN: In terms of
coverage, distance.
5 MR. SCHEIDEL: Not just distance but the
amount of coverage -- the circle you drew, let' s
6 say the circle ends up almost in the same spot,
let' s say it' s a mile difference, the other
7 difference you would see is the ability of the
system to hear and to penetrate in the circle of
8 coverage. So a good example would be if I'm on my
way down into a basement and on I'm on Step 3, and
9 I have good coverage on one map, I might get to
Step 9 and still have coverage on the other map;
10 you see the difference? As the antenna goes up,
the cone and the penetration of the cone widens
11 and actually deepens .
BOARD MEMBER WEISMAN: See, I understand
12 the concept I think pretty clearly, and I think by
now most of us do because we've been dealing with
13 this for a while. Obviously, what I'm concerned
about doing -- and I don' t know if it' s obvious
14 but I suspect it should be -- is to provide the
absolute maximum condition we possibly can in
15 terms of safety and communications capability
while mitigating the impact on the viewshed from
16 25 and the neighbors and all that other, because
that' s our balancing test. So I'm trying to find
17 out what the absolute optimum would be, and if
it' s deviated from that, what the amount of
18 diminished communication is because we don' t want
to diminish it to the point where it' s a problem
19 for the fire department. But on the other hand,
we do need to be sensitive to these other
20 criteria. So I'm just trying to find out what the
difference would be relative to life safety
21 between 120 feet and 110 or 100 . The other
question I had was East Hampton Village has 110
22 feet. So that clearly is related to the
topological conditions, the elevational
23 changes . Can you roughly characterize the
difference between say East Hampton and its
24 topography and say East Marion, or is that just an
impossible question?
25 CHAIRMAN DINIZIO: I can speak from
experience because I worked over there for three
January 2�, 2007
91
1
2 years. Where that antenna is I believe it' s on
the firehouse itself.
3 MR. SCHEIDEL: It's not on it, it' s right
behind it.
4 CHAIRMAN DINIZIO: It' s on Cedar. That
is at a fairly high place in East Hampton.
5 BOARD MEMBER SIMON: East Hampton is a lot ,
hillier.
6 CHAIRMAN DINIZIO: _ If you go up Cedar you
go a little higher. Then Springs has their own
7 fire department.
MR. SCHEIDEL: The other thing that' s
8 interesting is the Town of East Hampton' s an
interesting case, they have adopted a town-wide
9 strategy for communications as Southampton has
recently. And actually, that' s currently under
10 further development. But the Town of East Hampton
actually has as of this moment five tower sites .
11 That' s one of them. They actually have -- but I
didn' t want to try to say, well, .yeah, they needed
12 five sites . Well, yeah, that' s a town system
versus an individual fire department. So that
13 individual fire department that was the tower they
started with. The Town has since subsequently
14 added to -that communication system and now they
actually have five sites all of which are all well
15 - over -- so the only thing that comes into effect
is sea level . Where do you put your tower? They
16 have got some great hills to play with over there.
You got Noyak, you got Sag Harbor. You plant a
17 100 foot or a 200 foot tower on a site that' s
already 100, 200 feet above sea level now you have
18 a potent radio signal. But to look at what they
have done there is they have actually planted --
19 BOARD MEMBER OLIVA: They call it nesting.
MR. SCHEIDEL: Simulcasting, which is
20 where you have multiple transmitters on the same
frequency at the same time and you use a satellite
21 timing signal to lock them all in so the end user
radio, it sounds like one signal . The inbound
22 side of it is that each of those six sites all
listen for a radio at the same time and a computer
23 decides which site does that radio sound the best
through right now and that' s the one that connects
24 the transmitter.
BOARD MEMBER WEISMAN: So it' s much more
25 efficient.
MR. SCHEIDEL: Much more efficient, way
January 25, 2007
92
1
2 more expensive. The rebuild last summer, just the
rebuild, we rebuilt the system after it' s been in
3 place for nine years -- just the rebuild was 4 .2
million dollars .
4 BOARD MEMBER OLIVA: That' s a Cadillac
system.
5 CHAIRMAN DINIZIO: ; But unfortunately
that' s not the subject of this application. I
6 have a couple of questions I just want to ask
about your receiver, transmitter thing. You can' t
7 increase the sensitivity of your receiver beyond
raising that antenna. That' s your limitations .
8 MR. SCHEIDEL: There are physical limits
to the ability of a radio receiver -- reliable
9 audio carrier so to speak. The carrier wave
travels in the air and the audio is imposed on it.
10 There' s physical limitations to the electronics
and its ability -- things have gotten a lot better
11 than they were 10 or 15 years ago, but the
receiving equipment you put in police is the best
12 receiving equipment available.
CHAIRMAN DINIZIO: And you' re governed
13 basically by the FCC as to how much strength you
can put on that tower?
14 MR. SCHEIDEL: Yes .
CHAIRMAN DINIZIO: Now the FCC has
15 considered that that is not a detriment to the
public.
16 MR. SCHEIDEL: No, no, no. , They won' t
license anything. It' s very strict. Remember we
17 talked earlier about the bad cell phones .
BOARD MEMBER OLIVA: Yes.
18 BOARD MEMBER WEISMAN: Well, that was all
part of FCC rules they did after because they
19 realized it' s very closely regulated now. In the
old days it was cell phones wild, wild west, it' s
20 cell phones, build whatever we can build.
CHAIRMAN DINIZIO: And you can' t increase
21 the radios, the hand-helds naturally, they are
what they are. They are what they should be.
22 MR. SCHEIDEL: Yes, the hand-held today,
the technology available today is as good as it' s
23 going to get.
CHAIRMAN DINIZIO: Attenuate means
24 resistence, basically?
MR. SCHEIDEL: Yes.
25 CHAIRMAN DINIZIO: It' s resistance to the '
energy going through the air?
January 2t, 2007
93
1
2 MR. SCHEIDEL: Yes .
CHAIRMAN DINIZIO: On the fire ground,
3 say East Marion goes to Orient, they have a fire
ground frequency also?
4 MR. SCHEIDEL: Yes . Fire ground frequency
. is what you talk. The incident command system
5 which is now National Management System, which is
how part of it is how communications is used on a
6 scene. There' s a local communications channel
that your patrol will use. You don' t need to go
7 back to command for that; that' s for you to talk
amongst yourselves and generate things like
8 emergencies, like all men down. That needs to
stay as local traffic.
9 CHAIRMAN DINIZIO: Those are radios
talking to radios.
10 MR. SCHEIDEL: Yes .
CHAIRMAN DINIZIO: I just want to clarify
11 then, I guess, what you would lose from 120 to 80
feet.
12 MR. SCHEIDEL: It looks on the map to be
about 15 to 20 percent.
13 BOARD MEMBER WEISMAN: Is it a 15 to 20
percent degradation every 20 feet?
14 MR. SCHEIDEL: No, well, that' s not linear
because .now you get into -- the smaller the height
15 number gets, the more attenuators there are. I
wouldn' t say it' s exponential, but it' s not
16 linear.
BOARD MEMBER SIMON: What do you mean by
. 17 percent, 10 or 15 percent of what?
BOARD MEMBER WEISMAN: Loss communication.
18 BOARD MEMBER SIMON: Is it volume of
sound?
19 MR. SCHEIDEL: Lost communications .
BOARD MEMBER SIMON: How do you measure
20 that?
MR. SCHEIDEL: That' s an excellent
21 question. We might be here another two hours .
The simple explanation is, when you key up your
22 radio, I'd like to get through the first time
every time that would be 100 percent.
23 BOARD MEMBER SIMON: Oh, I see. It' s
percentages of getting through. It' s not like a
24 measure of volume?
CHAIRMAN DINIZIO: Basically it would be
25 your likelihood of getting through, the trees, the
buildings .
January 2 r, 2007
94
1 �
2 MR. SCHEIDEL: Also it' s a measurement of
the quality of the signal called P1 through P5,
3 which is if you' re a P1 you heard something but
you have no idea what it was. If you are P5, it' s
4 like us standing here.
BOARD MEMBER SIMON: Okay, so once the
5 signal. gets through, then you can handle it
locally on your device.
6 MR. SCHEIDEL: Yes, but the signal has to
get through or you have to be able to strip the
7 signal off the carrier before you can amplify it
here.
8 BOARD MEMBER WEISMAN: So at 100 feet
high, what would the coverage be in your
9 estimation? In other words, I'm asking you to
interpret this . How far out are we going to go at
10 100 feet?
CHAIRMAN DINIZIO: I think the question
11 should be what are you going to lose between those
two?
12 MR. SCHEIDEL: Reliability. The simple
word is reliability.
13 CHAIRMAN DINIZIO: Are you not going to
be able to get to Truman' s Beach?
14 MR. SCHEIDEL: At 100 feet I think the
answer is no, not reliably.
15 CHAIRMAN DINIZIO: How about to Rocky
Point Road?
16 MR. SCHEIDEL: No.
CHAIRMAN DINIZIO: Does East Marion cover
17 that district; will they have incident to go down
to Rocky Point Road?
18 BOARD MEMBER OLIVA: Yes .
CHAIRMAN DINIZIO: I'm trying to admit
19 this as part of our testimony because I don' t want
our Town to eliminate something is that fire
20 fighters need, the site of the tower
notwithstanding. I don' t want, because the
21 tower' s ugly have a guy go down to Rocky Point
Road and not be able to get coverage that he could
22 have gotten had the tower been taller. That' s
where I'm coming from.
23 I'm looking at the light blue, the, green
and underneath there' s a bar graph. It says 10,
24 30, 40, 50 . The one I'm looking at on the 80,
there' s 40 is at like the light blue, which has .
25 one square on Plum Island. My assumption is that
that square is there, and it' s dark blue in
January 2JC, 2007
95
1
2 between because the island is higher.
MR. SCHEIDEL: In other words you have
3 gotten behind .something.
CHAIRMAN DINIZIO: Right. The island is
4 higher than the water.
MR. SCHEIDEL: The darker the color the
5 worse it is . In fact, a good example of that
would be if you look over towards the shore,
6 right, notice there' s some terrific green over
there; what do you think those spots are? You' re
7 on top of something, you' re on top of a dirt pile.
CHAIRMAN DINIZIO: Which one are you
8 looking at?
MR. SCHEIDEL: You' re looking at .100 . See
9 how there' s green up here, that' s because you' re
up on top of something, right.
10 CHAIRMAN DINIZIO: They' re nice and high
and you' re over the bank that is Rocky Point.
11 You' re over that.
MR. SCHEIDEL: Sure. Then you see places
12 over here that are purple and dark blue, which
means you're behind something.
13 BOARD MEMBER SIMON: I would think that
there would be a technology whereby you could go
14 to any selective part of town, let' s say Truman
Beach or the beach by Rocky Point Road and check
15 by beaming it to something like a temporary pole
above .or an helicopter or something over by the
16 firehouse, so you would know what you could get
from --
17 MR. SCHEIDEL: There actually is hardware
and software to do that, and the cell phone
18 companies own it. It' s very expensive.
BOARD MEMBER SIMON: Because the reason we
19 seem to be guessing is because it depends entirely
on terrain and terrain is something that' s real on
20 the ground not in a model.
MR. SCHEIDEL: ' The best you can do is use
21 the USGS information. You're absolutely right.
And I guess if we did not have finite resources,
22 we could go do that.
BOARD MEMBER SIMON: Then or at least
23 someone could come in and get a clear answer to
you, how high does it have to be to be heard on
24 Truman' s Beach.
MR. SCHEIDEL: Right. We use the tools
25 that are available to us. Those are the same
tools that even cell companies use, to be honest
January 25, 2007
96
1
2 with you. Unless they have a very specific
coverage requirement, the system that does the
3 plotting, first of all would only be as good as
the resolution of the plotting you' re willing to
. 4 do. So if you're going to do plotting at every 10
feet that would be one resolution. If you' re
5 going to do plotting at every 100 feet it could be
a different resolution.
6 BOARD MEMBER SIMON: It' s the same thing
with calculating flood plains, it doesn' t cover
7 every square foot.
MR. SCHEIDEL: But you use the U.S .G.S .
8 BOARD MEMBER WEISMAN: Let me ask you a
simple kind of concluding question. Based upon
9 your expert opinion, what is the minimum height
required for maximum communication for the East
10 Marion Fire Department?
MR. SCHEIDEL: My best opinion on the maps
11 and data is 120 feet. If it' s less than that, it
will be something less than that. Could it be
12 higher than that? Sure it could always be higher.
What you end up with is base from Step 3 , base
13 from Step 9, base from Step 13 and issues of that
nature. But once again you have to work with
14 reasonable limits because we all know, once you
get to the 200 foot level, there' s all sorts of
15 issues with that. I mean, in a perfect world,
you'd hang everybody' s repeater on a balloon and
16. float it up to 1, 000 feet. That' s a science
experiment you want to do over the summer.
17 BOARD MEMBER WEISMAN: One follow-up
question, assuming that something was built at 120
18 feet, knowing that what we are dealing with are
residential properties behind and a viewshed along
19 a scenic byway, what conditions, without
compromising communications, could mitigate the
20 visual impact, in your opinion?
CHAIRMAN DINIZIO: I don' t think he' s
21 much an expert on that.
BOARD MEMBER WEISMAN: Okay. Let' s see if
22 there is an opinion on that?
MR. BOYD: A monopole of a neutral color,
23 minimize the number of things that are flying on
the outside of it. A single pole. Not bright
24 white like we have in Orient. I think we have
learned something from the Orient experience. The
25 poles, the antennas that seem to be most visually
offensive are the ones that seem to have these
January 25, 2007
97
1
2 growths hanging off them. And we' re getting away
from them as much as we possibly can and going to
3 the monopole design. The one that we have
proposed for East Marion will have I believe at
4 the 38 foot level a couple of stand-offs on it,
and then there will be one whip antenna at the
5 very top, but aside from that, you' ll just have a
single pole.
6 MR. SCHEIDEL: Interestingly, the
manufacturers of the actual antennas now believe
7 it or not have started offering them in sky blue,
they basically disappear.
8 BOARD MEMBER WEISMAN: . That' s what we
talked about. I proposed getting rid of .the flag,
9 which is going to be noise pollution. Then you
had to light it at night. Then you have the
10 issues of hoisting it at half-mast and all the
other requirements.
11 MR. BOYD: We'd be more than happy to do-
that, as you know we sent you a letter to that
12 effect.
BOARD MEMBER WEISMAN: Yes, you did. I
13 don' t think at that height with that distance from
the road, landscaping is going to do a great deal.
14 Because you don' t have the diameter -- if you look
at the triangulate, the setback from the height,
15 you'd have to have an 80 foot tree -- which you' re
not going to get -- which is going to then start
16 to interfere with your communication. So it' s
going to have to be by essentially letting it be
17 the most minimal structure visually that it can
be.
18 MR. BOYD: I think you're accurate in your
assessment that a lot of different things have
19 been tried that we seem to be reaching consensus
that less is more when it comes to the decorations
20 that go on it. We don' t want 120 foot palm tree
or pine tree or something like that. It is what
21 it is .
BOARD MEMBER WEISMAN: it' s a piece of
22 engineering.
MR. BOYD: It' s there; it' s there to serve
23 a very important purpose, and we can do things to
mitigate it. But we cannot erase the visual
24 impact entirely. What Mr. Scheidel is talking
about with the height of the antenna and so forth
25 that' s optimally, certainly we can look to a 200
foot antenna --
January 25, 2007
98
1
2 MR. SCHEIDEL: 195 actually.
BOARD MEMBER WEISMAN: Then you have whole
3 other engineering standards based on whip or wind.
MR. SCHEIDEL: The other thing is it' s set
4 so far back off the road, unless you' re looking
for it.
5 BOARD MEMBER WEISMAN: That' s the only
problem I have with it. I have no problem with
6 height at all. The problem is the context.
You' re in a small community, you know in a small
7 scale and that' s --
MR. BOYD: What we tried to do in East
8 Marion is already do this balancing and to make
this decision what is the maximum height that we
9 can get for on our antennas preserving as much as
possible the visual character.
10 CHAIRMAN DINIZIO: Anyway, I think we
have covered .just what we need to cover on
11 this . I would just like to kind of summarize so
we know that an expert, Mr. Scheidel, has
12 testified that 120 feet would be the height
necessary for the East Marion Fire Department, I
13 mean that' s correct, right?
MR. BOYD: That is definitely our
14 position.
CHAIRMAN DINIZIO: All the other stuff,
15 the screening and other stuff, we' re just going to
have to deal with, I suppose.
16 BOARD MEMBER GOEHRINGER: I do apologize,
however, I did need to leave about an hour ago and
17 this was so informative. So now I'm really in
trouble, I will read the rest of this testimony.
18 MR. BOYD: I am sure this will not be the
last one you will hear.
19 BOARD MEMBER WEISMAN: We' re beginning to
set standards for all cell towers because you' re
20 going to wind up with the same conditions .
BOARD MEMBER OLIVA: They' re going to put
21 some cell towers on in East Marion.
BOARD MEMBER OLIVA: Then we've got the
22 one up at the point.
CHAIRMAN DINIZIO: Is there anyone else
23 that wishes to speak in favor or against this
application?
24 MS . BANDERCHUK: I'm Sheryl Banderchuk.
I'm the neighbor right next door to the fire
25 department.
I was under the impression at the last
January 2J, 2007
99
1
2 meeting that this tower was going to be built for
the purpose of the fire department, and I just
3 found out today that the cell phone companies want
to come in and put their cell phone equipment on
4 it. Do I have any protection as the homeowner
next door living underneath that?
5 CHAIRMAN DINIZIO: For what?
MS . BANDERCHUK: To prevent that. I don' t
6 want the cell phone companies coming in and
putting their equipment on the tower.
7 CHAIRMAN DINIZIO: What is your fear?
MS . BANDERCHUK: The radio frequency for
8 the number of cell phone transmitters that they
want to put on it. Because initially the fire
9 department' s meetings for the community was to say
that the Cingular company was going to come in and
10 put this tower up and they wanted it at the 120
feet so they could put five different cell
11 transmitters on there for the cell phone
companies. I feel that they' re pushing for the
12 120 feet, not so much for the communications for
the fire department but to make it more accessible
13 for the cell phone companies now so they can come
in and cover the cost of putting this tower.
14 CHAIRMAN DINIZIO: Well, we did hear
testimony that the 120 feet is an optimum for
. 15 them, that anything under that they could lose
coverage for certain parts of their area. So the
16 height of the tower, not necessarily driven by
what companies are on it.
17 MS. BANDERCHUK: I think there might be
some influence to that too. I mean, can they get
18 by with the 100 feet. I wasn' t privileged to hear
the comments on that. How much loss will there
19 be?
CHAIRMAN DINIZIO: That' s what we had the
20 discussion about. At 100 feet they' re going to
lose something that they don' t want to lose. And
21 me personally, I don' t want to make that decision.
MS . BANDERCHUK: And I didn' t want to
22 be --
CHAIRMAN DINIZIO: And as far as the cell
23 companies are concerned, that' s not the subject of
this application.. And unfortunately, I think once
24 the tower' s built, it' s probably not the subject
of many applications . I'm not sure how that will
25 work. I don' t want, leaving your fears, but I
know from my experience in working with radio
January 25, . 2007
100
1
2 frequency that the government doesn' t allow a
person a transmitter that' s going to hurt somebody
3 in any way. That' s not to say that if you lived
at the top of the Empire State Building you
4 wouldn' t have something seriously wrong with you
after 40 years. But it is to say that they are
5 governed by certain entities that I am certainly
not an expert to say that what they' re saying to
6 me is not so. I understand your fear living next
to one, I do myself or did. But you .know, I don' t
7 know that we can make or break .or not based on
that because the most of the testimony before us
8 is that this is safe. And the federal government
does say so. That they have standards that are
9 met and the standards are for public safety.
MS . BANDERCHUK: Their standards are. safe
10 versus acceptable.
CHAIRMAN DINIZIO: Well, like I said, I
11 think more the cell phone thing is a
misunderstanding. on the part of the public as
12 opposed to any real fear. But you know what, I've.
been wrong before and so has the government.
13 MS. BANDERCHUK: I'm also concerned with
the height now, again, this is only 80 feet off my
14 property line. The tower of considerable height
above 80 feet has -- I know we have discussed the
15 collapse potential, but again, if this sucker goes
down it' s going down in my yard.
16 CHAIRMAN DINIZIO: Honestly, I don' t
think it will, quite honestly. If it ever fell,
17 it falls, it doesn' t topple. Even a building
doesn' t. The World Trade Center were knocked over
18 it wouldn' t be 100 stories this way, it would
probably be 65 stories . Because they fall going
19 down.
MS . BANDERCHUK: They still come down.
20 CHAIRMAN DINIZIO: They do. I would not
want to see that happen to anybody. Again, you
21 live there and I don' t, so don' t.,take -- I'm not
giving you any advice. ,
22 MS .. BANDERCHUK: It just makes me very
uncomfortable.
23 BOARD MEMBER WEISMAN: I just have a
question relative to your question, when cellular
24 carrier equipment is installed on that tower as
inevitably that' s how they' re getting paid for.
25 So let' s face it, we' re providing communications
for us as residents through the fire department,.
January 25, 2007
101
1
2 but we' re also offering a commercial -enterprise to
provide cell phone service. Will they be as a
3 monopole, will that equipment be housed on the
inside, or will it require external apparatus?
4 MR. BOYD: I would point you to the Orient
tower as a perfect example. The cellular antenna
5 that are not on that tower up there, they' re in
that tower.
6 BOARD MEMBER WEISMAN: That' s what I mean,
it' s internal; is it riot? So the actual visual
7 appearance is no different.
MR. BOYD: Unchanged by the cellular. The.
8 antennas that hang on the outside of .the Orient
tower, the same as the East Marion proposal, are
9 public safety antennas. They' re not cellular.
And public safety has certain requirements that
10 there has to be a horizontal offset of the
antennas for them to work properly, and the
11 cellular is more or less a linear type of antenna.
BOARD MEMBER SIMON.: One further question.
12 What is the frequency of cell phone communication?
MR. SCHEIDEL: Relatively low frequency of
13 about 810 megahertz to 890 . And most of the newer
cell phones that we have come to know as we have
14 broadband service and personal services are 1.7
gigahertz .
15 BOARD MEMBER SIMON: So they' re higher
than the 450 megahertz .
16 MR. SCHEIDEL: The higher the frequency,
the smaller the antenna.
17 BOARD MEMBER WEISMAN: Does the diameter
of the monopole at the base and the top change
18 with height, or is it pretty much consistent?
MR. SCHEIDEL: It gets smaller as it. goes
19 up.
BOARD MEMBER WEISMAN: So let' s assume the
20 diameter at grade remains the same regardless of
height; is that correct?
21 MR. SCHEIDEL: Pretty much.
BOARD MEMBER WEISMAN: So the diameter of
22 say 100 feet at the top and 120 , feet at the top
would be what, fairly negligible.
23 MR: BOYD: Again, fairly negligible,
undiscernible to the human eye.
24 BOARD MEMBER WEISMAN: That' s what I'm
asking. I just want that- for the record. I want
25 to see what the difference in visual impact and
the diameter of the monopole would be at 100 feet
January 25, 2007
102
1
2 and 120 feet. And you' re .suggesting it' s fairly
negligible.
3 MR. BOYD: Again, look at the Orient
installation, that is one of the common size
4 towers that is available. That tower could be 120
feet by the simply adding another 30 foot section
5 to it. Economically it is best to simply buy
these towers the way they make them. There' s a
6 difference in the diameter at the top.
MS . BANDERCHUK: The size is still going
7 to be the same.
BOARD MEMBER WEISMAN: Even if it was 80
8 feet, but you' re not going to see the base because
it' s screened with landscaping at the base.
9 MR. BOYD: Basically a tower in this
height range, when you deal with monopoles too,
10 you get into a 200 foot tower or something like
that.
11 BOARD MEMBER SIMON: I want to follow up
with my question to Mr. Scheidel about frequency.
12 and height. A higher frequency requires a lower
tower because there' s higher energy, it goes
13 farting.
MR. SCHEIDEL: No, it' s just the opposite.
14 You have a lot -- the higher the frequency --
BOARD MEMBER WEISMAN: The higher the
15 tower.
MR. SCHEIDEL: -- the more difficult it is
16 to make the energy.
BOARD MEMBER SIMON: But the energy to
17 make it. I'm talking about, concerned about
radiation. The higher the frequency, the higher
18 the energy and the greater the likelihood of a
radiation problem?
19 MR. SCHEIDEL: Yes .
BOARD MEMBER SIMON: So that' s why
20 frequency is relevant. X-rays, for example, are
very, very, very high frequency and they' re very,
21 very dangerous. On the low end, they' re
relatively low frequencies and low danger. That' s
22 the relevant consideration as to what is more
dangerous .
23 MS . BANDERCHUK: The absorption potential
in your body, in living tissue.
24 CHAIRMAN DINIZIO: Yes, but x-ray --
they're cellular telephone.
25 BOARD MEMBER SIMON: I'm just talking
about the relationship between frequency and
January 29, 2007
103
1
2 energy and possible danger.
MS . BANDERCHUK: We' re talking about two
3 different types of radiation.
BOARD MEMBER SIMON: All radiation is the
4 same. Electromagnetic spectrum, from infrared to
up to ultraviolet or x-ray, all the way up to
5 longwave.
MS . BANDERCHUK: Radio frequency doesn' t
6 to my knowledge cause ionization of human tissue,
living tissue, but it does cause -- does generate
7 heat.
BOARD MEMBER SIMON: It' s the energy from
8 the radiation that generates the heat. And the
energy is the direct function of the frequency.
9 The waves carry more force. The only mention
about x-rays or gamma rays is they' re extremely
10 dangerous and they' re extremely high frequency.
MS . BANDERCHUK: I'm an x-ray tech. I
11 know.
BOARD MEMBER WEISMAN: I think she' s
12 probably got more expertise than anyone else in
this room.
13 BOARD MEMBER SIMON: The lower the
frequency the safer it is, and that' s why I was
14 asking the question about where the frequencies
are.
15 CHAIRMAN DINIZIO: Okay. Can I just ask
Mr. Scheidel, it might help you, I don' t know.
16 Mrs. Banderchuk' s concern is for the frequency
coming off the antennas may harm her in some
17 way. You're the resident expert. Can you just
testify to that one way or the other?
18 MR. SCHEIDEL: The FCC won' t allow -- I' ll
give you a little point of fact. RF energy' s
19 cumulative. So if you were to put let' s say 10
antennas on the tower, the amount of energy that
20 would be off that tower from those 10 antennas
would be 10 times greater than one antenna. The
21 FCC standards are so strict that even with 10
transmitters the amount of energy coming off that
22 tower, couldn' t possibly affect anyone in the near
field of the system.
23 CHAIRMAN DINIZIO: We' re just speaking
directly to the fire department. Because my
24 understanding is in March the cell towers come in
here before us, which is certainly you want them
25 to come, express --
BOARD SECY. KOWALSKI: We' ll have that
January 26, 2007
104
1
2 hearing on that application.
CHAIRMAN DINIZIO: Right. And hopefully
3 there are other people that might come and have
misgivings . Mr. Scheidel speaks directly to the
4 fire department. One more question would be to
you is how long over the course of a year do you
5 think that thing is transmitting, that
transmitter, one hour, five hours,. 10 hours?
6 MR. SCHEIDEL: In the course of a year,
how many calls are there?
7 MR. BOYD: In a year, if we had an hour
and a half of actual transmitting time. I think
8 East Marion had 99 calls last year, and if you put
into that, there' s enough transmitting for the
9 entire duration of those calls .
CHAIRMAN DINIZIO: I want you to - say
10 that.
MR. BOYD: It' s transmitting only from
11 the -- Roger on your Signal 2, Unit 8-4-2 -- what
is that five seconds? And multiply that by three
12 or four trucks, you have 20 seconds of
transmission at the beginning of the call . You've
13 got another 20 seconds of transmission at the end
of the call . Maybe 40 seconds there. Throw in a
14 little bit of extra stuff. Let' s be really
generous and say we' re going to have a minute' s
15 worth of transmission for each call, so we' re up
to 99 minutes. We throw in the signal 19s, the
16 radio checks, okay, three hours worth of
transmission.
17 CHAIRMAN DINIZIO: Specifically to this
application?
18 MS . BANDERCHUK: I understand to the fire
department. That' s why I don' t have qualms about
19 it with the fire department. But with the
potential of the cell phone companies coming in
20 now, they' re transmiting 24 hours a day.
CHAIRMAN DINIZIO: Okay. And that you
21 speak to at the hearing in March. I think we have
to base our decision on what the requirements are
22 for the Town naturally, and what the community of
the East Marion Fire Department feels that they
23 need to the radio transmission and a fire ground.
The next step is when the cell companies come in
24 and decide they want to attach this, that' s the
whole different ball game.
25 MS . BANDERCHUK: Does that go through the
Zoning Board too?
January 2�, 2007
105
1
2 CHAIRMAN DINIZIO: Yes, it' s scheduled
for the 25th.
3 BOARD MEMBER SIMON: That' s when these
questions are particularly relevant. There will
4 be more people to hear you.
CHAIRMAN DINIZIO: Okay?
5 MS . BANDERCHUK: Thank you.
CHAIRMAN DINIZIO: Is there anyone else
6 who would like to say something about this
application? Hearing none, I' ll entertain a
7 motion to close this application.
(See minutes for resolution. )
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
January 25, 2007
106
1
2
3
4
5 C E R T I F I C A T I O N
6 I, Florence V. Wiles, Notary Public for the
7 State of New York, do hereby certify:
8 THAT the within transcript is a true record of
9 the testimony given.
10 I further certify that I am not related by
11 blood or marriage, to any of the parties to this
12 action; and
13 THAT I am in no way interested in the outcome
14 of this matter.
15 IN WITNESS WHEREOF, I have hereunto set my
16 hand this 25th day of January, 2007 .
17
18
19
20 Y/n _ /v
Florence V. Wiles
21
22
23
24
25
January 2 1�, 2007