HomeMy WebLinkAboutZBA-03/29/2007 Hearing 1
2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
ft COUNTY OF SUFFOLK STATE OF NEW YORK
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5 T O W N O F S O U T H O L D
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7 Z O N I N G B O A R D O F A P P E A L S
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Southold Town Hall
10 53095 Main Road
Southold, New York
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March 29, 2007
12 9 :30 a.m.
13 Board Members Present
14 JAMES DINIZIO, Chairperson
15 RUTH OLIVA, Board Member
16 GERARD 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
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COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047
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2 CHAIRMAN DINIZIO: As we discussed at our
last meeting, each member is going to take care of
3 their application; is that what we agreed to?
BOARD MEMBER GOEHRINGER: We' re going to
4 do the .best we can.
CHAIRMAN DINIZIO: Okay, our first meeting
5 is for William and Alice Lehmann, that' s Jerry' s?
BOARD MEMBER GOEHRINGER: Yes .
6 BOARD MEMBER OLIVA: It' s a carryover.
CHAIRMAN DINIZIO: Mr. Cuddy?
7 MR. CUDDY: Good morning, Charles Cuddy
for Alice and William Lehmann. If I may, I just
8 want to hand up a proposed covenant that I had
submitted to the town attorney a couple weeks
9 ago. Also, I have attached to it just for your
information and to help you to recollect, the two
10 lots that are involved in this matter.
BOARD MEMBER GOEHRINGER: Thank you, sir.
11 MR. CUDDY: I think you will recall when I
appeared here, there are two lots on Rabbit Lane
12 in East Marion, the Lehmanns own both of those
lots . They have owned them for more than 30
13 years . They have used the lot that faces Lake
Marion, which is Tax Lot 17, and is a 16, 000
14 square foot lot, they have used that as accessory
to their home. They have, as you can see on the
15 survey, a bocce court; they have had a swimming
pool and the swimming pool, incidentally, was
16 approved as an accessory use as we discussed last
time by a prior Zoning Board. This is a
17 completely unique lot. The reason I say it' s
unique is that Rabbit Lane is a lane -- and
18 Mr. Scott from the assessor' s confirms this
interpretation -- is a lane that part of the
19 owners own to the center; some of them do
not. It' s hard to tell where the Lehmanns are but
20 apparently they don' t own to the center by their
deeds. But the Town does not tax Rabbit Lane as a
21 separate lot. It taxes the individuals who own
the property facing that road or that lane for the
22 lots . So effectively the town, the tax people are
saying, we' re not sure who owns to the center. So
23 it' s not set up as a public road; it' s not even
set up as many private roads are as far as the
24 taxation goes . And I point out to you what they
are trying to do is to put a garage on a lot that
25 they have used as accessory, that they continue to
use as accessory to their principal lot, which is
COURT REPORTING AND TRANSCRIPTION SERVICE (631) 878-8047
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2 across the street. What I'm asking the Board to
r do is to acknowledge this as an accessory use on
3 this lot, and whether it' s separate or not, and
assuming it' s separate -- if it wasn' t separate,
4 of course we wouldn' t have the problem -- but
assuming it' s separate, I will point out to you
5 that I have prepared a covenant -- I have had this
discussion with the Lehmanns at great length,
6 they' re willing to give up in perpetuity their
right to use that lot as a building lot for a
7 home. That has to be something that hasn' t been
done probably before. They have decided they want
8 to use the lot as they have. They recognize that
even though that may be a diminution in price to
9 them and eventually if they sell it, that they
will transfer it that way. That they will take a
10 covenant that I have prepared, sign the covenant,
record the covenant with the county clerk; the
11 covenant says it will run with the land; it will
be permanent. They understand that they are
12 giving up the right, and quite frankly, it' s a
benefit to the community because there' s going to
13 be one less house in a fairly crowded area, and it
will keep that open, and I think it will make it
14 look a little more of an open area than it would
if you put a house on the lot.
15 We have DEC approval. We are going to get
Trustees' approval. We first have to get Zoning
16 Board approval. I think it' s appropriate in this
case, which is absolutely unique, to allow someone
17 who is willing to give up the right to put a house
on the lot, to use that lot, which is directly
18 across, and the right of way that we' re talking
about is like a driveway, you can only travel one
19 car at a time because I have done it several
times . It' s roughly graded; it has some stone in
20 it, but it' s basically the size of a driveway. So
we' re not talking about going across the public
21 road; we' re not even talking about going across a
private, like Bay Avenue, which goes down there,
22 which is a private road; we' re talking about
essentially a driveway.
23 So I would ask the Board to very seriously
consider approving this type of use as a
24 completely unique -- I don' t think it will come
r before you again; I don' t think has come before
25 you. And these are people willing to sign this
covenant. They will sign it. It will be subject
March 29, 2007
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2 to them delivering it to the county clerk, having
it recorded and run with the land. So I would ask
3 you to approve it on that basis .
CHAIRMAN DINIZIO: Understood, okay.
4 Jerry?
BOARD MEMBER GOEHRINGER: I have to tell
5 you that we have had some of these in the past,
but some people wanted to put swimming pools on
6 them and so on and so forth, I'm talking about in
the ground swimming pools or partially in
7 partially out. But you're probably correct,
Mr. Cuddy, that the perpetuity issue here is
8 probably one of the 50s . This is not a grand
stand, I have to tell you that I applaud you for
9 suggesting it is, and I do applaud your clients
for doing it.
10 MR. CUDDY: Thank you.
BOARD MEMBER WEISMAN: Well, I would
11 simply add, I think this is a very commendable
solution since it essentially benefits the
12 neighborhood by reducing density and number of
occupants using that very small dirt road and
13 path, as long as it' s duly recorded. Because
there are situations where lots cross a private
14 small road that had been set aside for an
accessory structure now are not recorded assuming
15 they could build a small dwelling on it and they
can' t. As long as it' s recorded properly, I
16 think, it' s a well-written C and R?
MR. CUDDY: Absolutely. It would be
17 subject to having it recorded, and I would deliver
the recorded copy to the Board.
18 BOARD MEMBER WEISMAN: So I don' t have any
questions . It' s very clear what you' re
19 proposing.
ASST. TOWN ATTY. CORCORAN: This may not
20 be a question best addressed to you, but I'm going
to ask it anyway and I apologize in advance. How
21 do you suggest that two owners down the line, this
is recorded, fine, they take notice of this and
22 it' s binding upon them, but they decide either
knowingly or unknowingly to go into the Building
23 Department and ask for a permit to build the house
anyway. How does the Building Department know
24 that they' re not allowed to build on it?
MR. CUDDY: Well, one of the things that
25 can be done is certainly to deliver a copy of the
recorded covenant to the Building Department. If
March 29 , 2007
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2 I were in the position of a town official, I would
do several things; I would have a copy of it --
3 and if you want, I certainly will do it -- to the
assessors, and I would have a copy delivered to
4 the Building Department so that everybody is aware
of this and it' s going to be very hard for them
5 even someone who' s starting to build to claim that
they had no knowledge of it.
6 ASST. TOWN ATTY. CORCORAN: They won' t be
able to, I'm comfortable with that as a matter of
7 law, that they take with knowledge if it' s
recorded in the county.
8 MR. CUDDY: I understand you' re talking
about a practical problem.
9 ASST. TOWN ATTY. CORCORAN: I am, which is
why my caveat that it' s not necessarily your
10 problem, but it is our problem.
CHAIRMAN DINIZIO: Michael?
11 BOARD MEMBER SIMON: Yes . I think you
made as strong an argument for this as probably
12 could be made. Nonetheless, I am still not
entirely convinced and I have a series of
13 questions .
First of all, the question whether it' s
14 one lot or two is not immaterial and so one would
have to decide. Currently it is two lots . If it
15 becomes -- and you call it an accessory lot, then
it becomes a de facto merger in order for it to do
16 that perhaps, which then raises the other question
is if this right of way is not really a road, it
17 is presumably not taxed to any of the owners so
therefore again, as far as tax is concerned, it is
18 a piece of town property, whether you call it a
road or not. So they' re not even contiguous lots,
19 they' re on the opposite side of the street. And
if that analysis is appropriate, then it does
20 raise the question of somebody essentially taking
a separate detached old lot and encumbering it in
21 perpetuity so no one else could ever build on it,
and the purpose would be of course so that they
22 can build a driveway on this rather than put
another house on it, which they could legally do
23 or selling it to somebody, which they' re not
particularly interested in doing because they want
24 that garage so badly that they' re willing to
sacrifice the long term financial gain of keeping
25 it a buildable. One wonders on the policy here,
and people talk about the benefit to the town, I'm
March 29 , 2007
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2 not sure how narrowly or strongly we want to talk
about a benefit. Among the benefits to the town
3 of Southold are the benefits of prospective
homeowners and home builders . If I live in that
4 town and I'm renting, and I am looking for a lot
to buy to build on and I am a member of this town,
5 I am not benefited by having one lot taken off the
list of recognized buildable lots for the
6 so-called benefit of the town -- it' s for a
benefit of part of the town. It' s kind of a
7 balancing. In other words, the benefit for people
who want to build houses who don' t even live here
8 is not insignificant. It' s certainly not zero.
So I have questions of this sort. So I am
9 concerned about, I think it matters how we
describe the property, and I think we' re going to
10 have to review this and I have no idea how the
discussion will go further on. I agree that it' s
11 an original solution to a more or less original
problem. That all by itself doesn' t make it
12 worthy of praise and acceptance but it' s certainly
worthy of giving a hard look at. It' s more of a
13 speech than a question.
MR. CUDDY: I was going to say, I'm not
14 sure where to start, but I can answer part of some
of the things you pose. I think first of all that
15 the tax authorities have indicated that this is
not taxed separately. So what' s happened is that
16 the land that the road is on is taxed as part of
the lot so the lot owner is paying for this road
17 essentially as if he had owned to the center of
it. And what Mr. Scott and I both agree upon, and
18 I have done title searches and he' s done them, is
that some of the lots on this road actually go to
19 the center of this road and the road came
afterwards. In the case of the Lehmanns, it
20 appears, although it' s not completely clear and I
have spent hours with Chicago Title doing this,
21 it' s not completely clear if their deeds were
constructed -- at least on record it would seem
22 that their deeds are constructed so that the road
ends their lots, but some of the lots on that road
23 it' s exactly the opposite. So this is the case
where you have a road that essentially isn' t
24 recognized by the assessor for tax purposes and
that also makes it just about unique. And
25 Mr. Scott has also said there' s only one or two
roads in the town like that.
March 29, 2007
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2 BOARD MEMBER SIMON: Is there an answer to
the question how much of that land is actually
3 part of the two tax parcels of the Lehmanns . If
the stuff in the middle of the road is not a road
4 but not taxable, then it' s not part of what
Mr. Lehmann --
5 MR. CUDDY: It is taxable to them as if it
were part of their lot.
6 BOARD MEMBER SIMON: It goes into the
square footage of their lot?
7 MR. CUDDY: Yes .
BOARD MEMBER SIMON: The size of your lot
8 depends on the size of your tax bill or is it the
other way around?
9 MR. CUDDY: No. I think that the tax bill
recognizes that you essentially go to the center
10 and that' s what they do because there are some
that actually do and some that don' t. If you look
11 at the map, there' s not a separate tax number.
BOARD MEMBER SIMON: So by that analysis
12 they really are adjoining lots?
MR. CUDDY: That' s right, and that' s what
13 I'm saying.
BOARD MEMBER SIMON: With something in
14 between as though there were no right of way.
BOARD MEMBER GOEHRINGER: Mr. Cuddy, that
15 situation that you' re describing is done in almost
every condo complex. Before the County of Suffolk
16 used to own several of the roads and several of
the common areas, and we've asked every assessor
17 to please indicate that each 1/53 of each property
owner be assessed for the owner of that particular
18 piece, and that' s very similar to what was done,
as you probably are well aware. And I just wanted
19 to offer that in reference to Michael .
BOARD MEMBER SIMON: So it' s commonly
20 owned as a condo?
BOARD MEMBER GOEHRINGER: Yes .
21 BOARD MEMBER SIMON: Commonly owned by the
residents of Rabbit Lane?
22 BOARD MEMBER GOEHRINGER: Yes .
CHAIRMAN DINIZIO: Okay. Ruth?
23 BOARD MEMBER OLIVA: No, I don' t deny the
integrity and the good will of your client, but I
24 would just like to take a little time before our
decision to investigate ten, 20 years down the
25 line how is this going to stand up, and who is
going to know it as far as the town is concerned
March 29, 2007
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2 because we have had other things that were years
and years and years, things kind of fall through
3 the cracks, and that is a buildable lot, and I do
have concerns about that. So I will reserve my
4 decision until the 19th. But I think it' s a good
covenant.
5 CHAIRMAN DINIZIO: I think we heard quite
enough about this and my own personal feeling on
6 it is that we found out that we granted a pool on
this by going through the record, which is our
7 job, and certainly, anybody who would come after
this owner that would purchase that lot would see
8 a garage on there would have to go to the town and
ask for a building permit to put a house on it,
9 you know, at that point. Then a lot of things are
going to come into play. It' s going to be more
10 restrictive than it is now. Certainly one of the
things that' s going to come to play is let' s see
11 how the ZBA put that garage there if they' re
claiming a separate lot. That' s part and parcel
12 of every day business in Southold town. So I
think you have covered just about everything and
13 certainly the covenant will be part of that
record. I'm just wondering is there any way to
14 put it on the tax card? Mr. Scott, can I ask you
a question? We' re discussing Rabbit Lane. I know
15 that you' re very familiar with that, somewhat
familiar with it. I was wondering personally, and
16 I'm glad you came in here, if there' s any way to
record a covenant on a tax card such and such date
17 a covenant was issued for this lot?
MR. SCOTT: Covenants are on deeds .
18 BOARD SECY. KOWALSKI : Well, it' s a Zoning
covenant saying no house may be built on this
19 property.
MR. SCOTT: If you want us to make special
20 notice of that, I think that can be done.
CHAIRMAN DINIZIO: We could ask you to do
21 that?
MR. SCOTT: I think you can, that' s
22 fine.
ASST. TOWN ATTY. CORCORAN: You wouldn' t
23 necessarily have to say exactly what the covenant
said, but there needs to be some notation that
24 there' s some restriction.
MR. SCOTT: If you' re saying if there' s
25 something that says that the ZBA says that there
can' t be a house built on it, it would be good for
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2 us as well because then we would have to change
the assessment on the property. We would have to
3 take a look at it, and we would also take notice
to somebody taking a look at it in the future . that
4 they wouldn' t purchase it thinking they could
build on it.
5 BOARD MEMBER OLIVA: Right.
CHAIRMAN DINIZIO: So two things -- one
6 thing anyway. I think we need to explore, maybe
you can, Kieran, whether it' s legal for the town
7 to record that type of information on a tax card;
do you know what I mean?
8 ASST. TOWN ATTY. CORCORAN: It' s legal
until somebody objects to it.
9 CHAIRMAN DINIZIO: I'm just concerned
about, if we make this a restriction, we say it
10 must be duly recorded on your tax card, we' re
telling you to do something, requiring you to do
11 something we find out later that for some reason
you can' t legally do that; this person comes back
12 to us and says, look, I can' t meet this
restriction because it' s not legally possible;
13 you' re requiring me to do something not legally
4 possible.
14 MR. SCOTT: If you gave us a letter or
recommendation, something legally from the ZBA, we
15 would put it in the form, and I'm sure we can put
something on the card.
16 CHAIRMAN DINIZIO: All right. Do you
understand what I'm saying, Kieran?
17 ASST. TOWN ATTY. CORCORAN: Yes .
MR. SCOTT: And that would be something,
18 if you' re putting a restriction, a comment and/or
restriction or something like that, that would be
19 in a future deed, that would be automatically put
on there.
20 CHAIRMAN DINIZIO: We found something with
deeds that some way they can play with them,
21 again, during the course of our work, anybody
would apply for a building permit in every day
22 town hall business, they go to the ZBA, they look
at all the records, they look at your files and
23 find it too. Maybe the Board will be more
comfortable with that?
24 MR. SCOTT: You give us something
official, we' ll put it on there.
25 BOARD SECY. KOWALSKI: Mr. Cuddy, time
frame, how much time would you need to put a
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2 covenant on the property? The Board might have a
time constraint if they grant it.
3 MR. CUDDY: I will get you back the signed
covenant within maybe 10 days, and wherever you
4 want it, I' ll record it. I mean, if you say it' s
subject to being recorded within so many days, my
5 office physically records deeds, so we' ll go over
there and record it.
6 CHAIRMAN DINIZIO: So 90 days would be
enough?
7 MR. CUDDY: Certainly. 60 days would be
enough.
8 CHAIRMAN DINIZIO: Is there anyone else
who wishes to comment on this application? If
9 not, we' ll close the hearing and reserve decision
until later.
10 (See minutes for resolution. )
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11 CHAIRMAN DINIZIO: Our next hearing is for
Gerald Lang.
12 BOARD SECY. KOWALSKI: Do you have the
affidavits of posting and the mailings?
13 MR. LANG: Yes . I remailed them again for
this month, but I didn' t receive the green cards .
14 BOARD SECY. KOWALSKI : We would need all
the receipts again, if you have them with it, I' ll
15 take it. And the affidavit of posting, you put up
a new sign?
16 MR. LANG: Yes.
BOARD SECY. KOWALSKI: Just drop by the
17 office later when you finish here and ask Jane if
you can fill out a form for the signed posting.
18 MR. LANG: I'd also like to submit this,
which is actually the plaintiff who wrote the
19 letter last time. I took pictures of his house
and the view from his house towards my house. Do
20 you guys want to look at it?
CHAIRMAN DINIZIO: Sure, you can bring it
21 up.
BOARD MEMBER OLIVA: We like pictures .
22 MR. LANG: And this is what we have to
look at what when we drive by his house. From his
23 house you can' t really see it, you have to squint
to see it, and he doesn' t drive by my house. We
24 have to drive by his house.
CHAIRMAN DINIZIO: Okay.
25 MR. LANG: I thought he'd be here today
because he is off, I saw his truck in the
March 29, 2007
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2 driveway.
CHAIRMAN DINIZIO: Excuse me, just for one
3 second, Mr. Lang. Mr. Scott?
MR. SCOTT: I just wanted to go one step
4 further. I just talked to the office staff on the
RPS system, there' s a folder we could put in for
5 notes . So if there' s a special exception, we
could put it right on the RPS system and anybody
6 could see it.
BOARD SECY. KOWALSKI: You might just want
7 to mention that this is on a different hearing.
CHAIRMAN DINIZIO: Thank you. Okay, that
8 was for the Lehmann hearing. Now we' re back in
the Lang hearing.
9 Okay, so we' re here today, basically this
is a carryover hearing, and I guess do you have
10 anything to add before we start grilling you, sir?
MR. LANG: No.
11 CHAIRMAN DINIZIO: Michael, this is your
application?
12 BOARD MEMBER SIMON: This is the second
part of a hearing and the only new information is
13 the letter from Mr. Burton, and it was the hope
that Mr. Burton would actually be here, and we
14 have the letter on file. You have seen the letter
I assume?
15 MR. LANG: You guys read it, I didn' t see
the letter, actually.
16 BOARD MEMBER SIMON: Well, let me just,
the objection that it raises is certainly not new
17 over other information, but it raises the question
about the effect of this structure, which is a
18 play house combination bus stop, and the effect on
the neighborhood from the visibility of this, the
19 fact that it is there. And I would think that we
should review this, not how does it look from him
20 but how does an interested, legally entitled
citizen feel that it should be from even the
21 hypothetical person that does drive by that is
necessarily him. You don' t have to be in direct
22 view of something which you find troubling in
order to raise the question of is this consistent
23 with the neighborhood. And the other question
which was raised the last time was concerning the
24 perpetuation of this nonconforming structure once
the children are no longer going to school there
25 if there comes a point when it is there merely as
an ordinance; do you have any suggestions about
March 29, 2007
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2 what would happen in that case?
MR. LANG: I would totally donate it. I'd
3 like to donate it to the Mattituck Yacht Club or
the beach or even a school or something.
4 BOARD MEMBER SIMON: To move it?
MR. LANG: Yes . Why not let other kids
5 enjoy it. I even thought Harbes in Jamesport
there, he would take it.
6 BOARD MEMBER SIMON: When you do raise the
possibility of moving it, it does open the
7 possibility that the Board might ask you to move
it further away from the street. Admittedly that
8 would reduce its value as a bus stop, bus shelter,
but at least it waives the objection that it would
9 be impractical to relocate it.
MR. LANG: Well, it would be because I did
10 put a brick foundation in so it is a little bit of
a challenge to move it. And if I didn' t put the
11 foundation, it would have been moved already, and
I wouldn' t be here at all because I would have had
12 it brought back to the 35 foot line and it
wouldn' t be an issue at all .
13 BOARD MEMBER WEISMAN: Why wouldn' t that
be an issue when it came to donating it to Harbes
14 or whoever, because you would have to get rid of
the foundation in any case?
15 MR. LANG: Well, if I had to move it now,
then I'm going to move it 35 feet in so the kids
16 can enjoy it to this day, then I wouldn' t have to
move it at all. Because at one point the kids are
17 going to stop using it and I'd like to see it
enjoyed by other kids .
18 BOARD MEMBER WEISMAN: May I ask a
question? Is it your preference to have that play
19 house on your property, or if it has to be moved
regardless, is your preference to continue to own
20 it on your property in an appropriate location or
donate it elsewhere?
21 MR. LANG: Today or in the future?
BOARD MEMBER WEISMAN: Today.
22 MR. LANG: Today, I'd like to have it on
my property or the neighbor' s or at least have the
23 kids in my neighborhood using it. I mean, when we
do play dates and the kids come over, it' s the
24 first thing they do is they' re up in the
lighthouse all day long.
25 BOARD MEMBER WEISMAN: Okay.
MR. LANG: So today, but when they' re
March 29, 2007
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2 older and they stop using it, I have no problem
moving.
3 BOARD MEMBER WEISMAN: Where might you
move it on your property?
4 MR. LANG: Well, I'd have to move it back
35 feet and it wouldn' t be an issue with the
5 Zoning Board or the Building Department, nobody' s
issue.
6 BOARD MEMBER WEISMAN: Right. And do you
have a location where you would be moving it
7 that' s 35 feet from the setback?
MR. LANG: I could, yeah.
8 BOARD MEMBER WEISMAN: Okay.
CHAIRMAN DINIZIO: Ruth?
9 BOARD MEMBER OLIVA: Again, it' s real
cute, I do like it, but I would prefer to see it
10 35 feet back because it really hits you as you
drive down there.
11 MR. LANG: I mean, I could tone it down, I
could get rid of the red stripe
12 BOARD MEMBER OLIVA: It' s just that it
sits so close to the road.
13 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER: I think from a
14 health, safety and welfare point of view, I think
if we were to garner three votes for a period of
15 time to leave it in its present position, you
would definitely have to put some barrier up
16 between that and the road. But I don' t know
that' s going to happen. We' ll deal with the first
17 deliberation on the 19th. Certainly the toning
down aspect and certainly the situation of some
18 buffering from the road in the way of plantings or
whatever the case may be, that .would certainly
19 make it more palatable, there' s no question about
it. There is no doubt in my mind that it' s
20 probably one of the most unique structures that I
have ever seen, except for the heron that we were
21 dealing with for several years up in Paradise
Point Shores . But needless to say, that' s just my
22 opinion.
MR. LANG: When you say buffer, are you
23 saying like guard rail?
BOARD MEMBER GOEHRINGER: I'm saying guard
24 rail for safety purposes, it doesn' t have to be
made out of steel or aluminum.
25 MR. LANG: For cars or what?
BOARD MEMBER GOEHRINGER: Yes, for cars,
March 29 , 2007
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2 you know, with a little opening for the kids to
get through, but that type of situation.
3 MR. LANG: Well, I had a fence already
that I was going to put around the whole thing,
4 like a white picket fence.
BOARD MEMBER GOEHRINGER: Well, what you
5 really need is something rather substantial, and
it would be something like six by sixes put in the
6 ground, and a four by six border around the top of
it; that at least would in some way inhibit a car
7 from going into this particular -- do you know
what I mean? It' s on a bit of a turn, the whole
8 road is a horse shoe basically at that particular
point, and one never really knows what the nature
9 of the Southold Town Highway Department does a
wonderful job plowing roads but that doesn' t mean
10 that all the ice is going to be off the road.
It' s a low speed area. It' s probably not going to
11 be a situation where anybody' s going to intrude
into it, and it' s really a hypothesis on my part,
12 but I do the same thing for people who want to put
swimming pools on corners, and if they don' t put
13 it in, I don' t vote for it.
BOARD SECY. KOWALSKI : And sometimes
14 people put both, they put a picket fence --
BOARD MEMBER GOEHRINGER: You can hide it
15 behind a white picket fence, that' s not a problem.
MR. LANG: So you' re talking about a guard
16 rail for a car driving, for the safety of the kids
playing in it?
17 BOARD MEMBER GOEHRINGER: Yes . I've been
a Mattituck Park District commissioner for 30
18 years in Mattituck and what we have been doing is
using six by six rails -- four by six rails into a
19 six by six post, and as I said, that can be hidden
behind a fence. But we' ll see how this goes .
20 MR. LANG: I mean, that wouldn' t be much
of an eyesore, I mean, I do have bushes there
21 already. I could either put it behind the bushes,
I don' t think that' s too much of an eyesore. I
22 mean, it would only have to be one rail, one four
by six? Which you used to see on the roads before
23 the steel came around?
BOARD MEMBER WEISMAN: Yes.
24 BOARD MEMBER GOEHRINGER: Yes, something
that' s paintable and conforms .
25 CHAIRMAN DINIZIO: Leslie, do you have
anything else to add? Okay, I just want to go
March 29, 2007
14
1
2 over what you' re asking for here. First of all
you have a small deck on the second story, which
3 kind of sticks out a little bit, and you need a
variance for that, correct?
4 MR. LANG: I thought that was a dead
issue.
5 CHAIRMAN DINIZIO: No, it' s not a dead
issue, we have to vote on that.
6 BOARD SECY. KOWALSKI : He had asked the
Board to reverse that.
7 CHAIRMAN DINIZIO: We need to make a
decision on that.
8 MR. LANG: I thought that was a dead
issue.
9 CHAIRMAN DINIZIO: Could be but it' s still
part of the application.
10 BOARD MEMBER WEISMAN: And second you have
this lighthouse and you'd like to keep it in the
11 location that it' s in right now mostly because
it' s on a fairly permanent foundation, right?
12 MR. LANG: Right.
CHAIRMAN DINIZIO: Your hardship isn' t
13 necessarily that you couldn' t move it, it' s that
the foundation that you put in would be useless
14 now. It' s not like it' s on wheels and it could be
moved around. I just wanted to focus you that
15 those two things are the focus of this
application. The concerns of the Board is that
16 we' re granting and almost encouraging children to
play near the street. That' s basically how I see
17 it. And us, me myself, granting a variance for
that, implies that I take on some responsibility
18 if something happens, not necessarily that they
come after me, but it would be a shame that if one
19 of the kids ran -- you know, they' re out playing
near the street to begin with because they' re
20 encouraged to go there because I encouraged them
to go there because -- I don' t want to have that
21 on my mind. So any safety that we can have, which
a fence would be nice, guard rail would be
22 probably even a little better, part of as a
compromise for you not having to have the hardship
23 of moving this foundation is agreeable. And I
think you' re agreeable to most of that.
24 MR. LANG: Yes .
CHAIRMAN DINIZIO: You know the guard rail
25 part of that might be more than one board length
of that, I think
March 29, 2007
15
1
2 MR. LANG: I'm sure you guys don' t want to
have an eyesore either.
3 CHAIRMAN DINIZIO: No. But sometimes you
have to see the poster where they have the
4 interpretation of the insurance company how they
want you to build a house, how the builder likes
5 it, how the architect likes it, well the ZBA has
one of those little squares too.
6 MR. LANG: Well, the reason we actually
bought in that neighborhood is because there's so
7 many kids and it' s like a dead end, it' s just its
own circle. So there' s no speeders there, there' s
8 tons of kids, and all the kids are riding bikes in
the street, everything happens in the street.
9 CHAIRMAN DINIZIO: I hope you understand
from our point of view.
10 MR. LANG: I am starting to understand
your point of view.
11 CHAIRMAN DINIZIO: Any questions from the
audience? Anything you would like to add, Mr.
12 Lang? Anybody on the Board?
BOARD SECY. KOWALSKI: I just want to
13 mention that the Board will be making a decision
on April 19th. It' s an evening, 6 : 00, and it' s in
14 the other building on the second floor.
BOARD MEMBER GOEHRINGER: I just want to
15 add for the record, Jim, I think I'm going to go
down there and do some measurements as to what I
16 think a little barrier might be so you might see
me down there.
17 1BOARD SECY. KOWALSKI: And there were four
mailings you were supposed to do?
18 MR. LANG: The fourth was the creek, which
is the Town of Southold, which I didn' t
19 understand.
BOARD SECY. KOWALSKI: Would you stop in
20 the office and we' ll go over it?
MR. LANG: Okay.
21 CHAIRMAN DINIZIO: Okay, I will entertain
a motion to close this hearing.
22 (See minutes for resolution. )
- - - ---------------------------------------- - --- --
23 CHAIRMAN DINIZIO: Next hearing is for
Lynne Cardaci. Ruth?
24 BOARD MEMBER OLIVA: You are applying for
a variance under Section 280-124, based on the
25 Building Inspector' s January 9, 2007 notice of
disapproval concerning an application for a
March 29, 2007
16
1
2 building permit for a proposed addition to the
existing dwelling at less than 40 feet from the
3 front lot line, at 80 Jernick Lane in Oaklawn Lane
in Southold. Actually, you have two front yards
4 and the addition from what I can see from the
survey here is about 28 by 13?
5 MR. CARDACI: Correct.
BOARD MEMBER OLIVA: Anything else you
6 would like to add?
MR. CARDACI : Not really.
7 BOARD MEMBER OLIVA: I take it you' re
storing that boat underneath that plastic hut?
8 MR. CARDACI : That' s my boat. My wife
calls it the circus tent. It' s my boat that' s
9 actually going in the water hopefully this month.
BOARD MEMBER OLIVA: You don' t have much
10 room to store it someplace else. I just want it
noted that it is there. And the decrease is for
11 what use?
MS. CARDACI: It' s going to be a master
12 bathroom and closet space.
BOARD MEMBER OLIVA: We all need more
13 space, I know.
CHAIRMAN DINIZIO: Okay, Jerry?
14 BOARD MEMBER GOEHRINGER: I have
absolutely no problems with it.
15 CHAIRMAN DINIZIO: Leslie?
BOARD MEMBER WEISMAN: No, your very heavy
16 vegetative buffer, your landscaping, makes it
virtually invisible from any direction, plus it' s
17 fenced and the setback is the same as the house.
I don' t have any problem.
18 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: When we are talking
19 about an addition which hasn' t yet be constructed
and presumably the architect works with the zoning
20 code in mind, and if it' s going to exceed even by
a couple of feet what the zoning code says, you
21 pretty much would know, or your builder would know
that you' re going to be denied a building permit
22 and you' re going to have to appeal for an
exception, which is why you're here. Now the
23 question is, if in many cases when you get an
exception it' s because there are specific features
24 about the property or the lot or the circumstances
or the terrain that make it difficult, expensive,
25 impractical to do it according to the code, so I
take it that the burden is on the applicant to
March 29, 2007
17
1
2 say -- this is a general principle I will apply to
all applications -- what is it about this
3 particular project which makes a compelling case
for asking for basically relief from two feet of
4 the building code? The statement which is useful
is that you want to build a bath and closet, which
5 is certainly generous in size, and we all need
more storage is a pretty good sized closet and
6 bathroom, right you would say luxurious, so that
alone for me doesn' t explain why it could not have
7 been designed consistent with the building code;
I' ll ask you if you have anything further to say
8 in support of the decision to design it this way?
MR. CARDACI : We wanted to go as far out
9 as we could because our master bedroom is small as
well . The rest of the house is large and when it
10 got to the bedroom parts, all the rooms were
shrunk down and our master bathroom now consists
11 of a stand-up shower and a sink and a toilet and
then we have one closet that' s only two by seven
12 in our master section of the house. So we were
trying to go a little larger, open up our room a
13 little bigger so we could walk around our bed and
plus put another bathroom in there.
14 BOARD MEMBER SIMON: What are the
dimensions of the bedroom now?
15 MR. CARDACI : Roughly 13 by I would say
14, the house is 25 feet wide, maybe 12 and a half
16 by 14 .
BOARD MEMBER SIMON: So this is actually
17 larger, if I'm right about this, than the bedroom
is itself?
18 MR. CARDACI : Yes, the addition is going
to be larger than the bedroom, yes. But we were
19 intending the bedroom into that room as well a
little bit.
20 BOARD MEMBER SIMON: So part of that is
going to be expanding the bedroom, so you don' t
21 have the situation of a small bedroom with a large
closet in the back. I'm sure I would have
22 discovered that when I looked at your plans . No
more questions .
23 CHAIRMAN DINIZIO: Okay, well, I mean
it' s obvious that you' re going to expand your
24 master bedroom and we can see the reason why, it
looks like you' re building basically a master
25 suite. Do you have anything else to add?
MR. CARDACI: No.
March 29 , 2007
18
1
2 CHAIRMAN DINIZIO: Anybody in the audience
like to speak for or against this application?
3 Hearing none, I' ll entertain a motion that we
close the hearing pending decision.
4 (See minutes for resolution. )
- - ---------------------------------------------- -
5 CHAIRMAN DINIZIO: Next hearing is for
Steven and Clara Wong. Michael, that' s yours .
6 BOARD MEMBER SIMON: This is a request for
a variance to allow the building of an accessory
7 garage in what is technically a front yard and
with this being a house that exists between two
8 roads . So that the front yard is on East Gillette
and the backyard is on Gillette proper or West
9 Gillette. So that no matter where the garage is
it looks as though it' s not going to be in the
10 rear yard for the simple reason that there is no
rear yard. So the question is, well, how would
11 you say beyond what I have already contributed I
think to your help in some way to support this
12 application?
MS . TOTH: Okay. Good morning,
13 Mr. Chairman, Members of the Board, my name is
Vicky Toth. I'm here on behalf of the property
14 owners, Steven and Clara Wong. I have two letters
in support of this application from neighbors and
15 I also have some photos (handing) .
As you know, this is not a self-created
16 hardship with this garage. This is a lot that' s
very large in size in comparison to the whole
17 overall neighborhood. It is a lot that has two
front yards according to town code because it' s in
18 between two roads . The placement of the garage
that they' re proposing can no way meet a code
19 because they do not have a rear yard. Looking at
their survey and what they're proposing, they' re
20 not even going to be close to their lot coverage.
So they' re not going to be going over anything as
21 far as lot coverage goes. The reason they're
requesting this garage is that Mr. Wong is a
22 restorer of antique cars . It' s his hobby and
that' s what he loves to do. This is what the
23 garage is proposed for is for his hobby. As you
can see, I presented you with photos . We' re not
24 asking for anything that would set a precedent in
the area. There are three other homes, one is two
25 parcels away that have detached garages in their
front yards . They' re also keeping this garage in
March 29 , 2007
19
1
2 keeping with the style of the home that' s existing
on the property now. There are neighbors that
3 have signed letters . There' s an association there
that nobody has objections, they actually thought
4 he was doing a swimming pool, then when they
realized he was doing a garage, nobody has
5 objections to it. As you can see, on the one side
of the property where they' re placing it, there is
6 a tree line that will be blocking that garage
pretty much from the neighbor on the other side to
7 the north. And basically the reason their yard
isn' t even landscaped yet is because they' re
8 waiting for this garage, because they' re going to
also have a pergola that' s going to go onto this
9 garage, and that' s going to be part of their
landscaping.
10 BOARD MEMBER SIMON: Will the garage front
on Gillette or will it front on East Gillette?
11 MS. TOTH: Actually it' s going to go
through, doors on both sides .
12 BOARD MEMBER SIMON: Right. So you have
to have elevations here so the question is --
13 MS. TOTH: Okay. You can enter from
Gillette.
14 BOARD MEMBER SIMON: Okay, so from the
point of view of people who live on Gillette, will
15 it look as though here is a building that is as
far as they're concerned in the front yard? What
16 will it look like on their side; will it look like
a house or will it look like a garage where a
17 house ought to be if there were but for the fact
that this house already is on East Gillette?
18 MS. TOTH: Actually, it' s just going to
look like an accessory garage that' s not attached
19 to the garage. You can tell from the elevation
that the architect designed or the drawing that
20 was provided for the Board that it' s going to be
in keeping -- it' s not going to look like a
21 house.
BOARD MEMBER SIMON: So the overhead doors
22 will be facing Gillette?
MS . TOTH: Correct. And I provided --
23 BOARD MEMBER SIMON: I know, we have the
elevations on this. So if you go down Gillette,
24 you' ll see a house, a house and a garage and. then
another house.
25 MS . TOTH: Actually, you' re looking at
backs of houses because the two houses that are
March 29 , 2007
20
1
2 side by side are exactly the same size lots with
the same type lots .
3 BOARD MEMBER SIMON: I forget, are there
other lots on Gillette that face Gillette?
4 MS . TOTH: Yes, but the uniqueness of this
situation is that this was originally two lots
5 that now is one, and that' s the same thing with
the property to the north. The property to the
6 south actually has two houses on it. But it' s two
separate lots so you' re seeing the front of the
7 house. The garage is being placed on the opposite
side from where that house is . So it' s not going
8 to look out of character or out of place and
especially once they get their landscaping done
9 it' s really going to blend in nicely with the rest
of the neighborhood.
10 BOARD MEMBER SIMON: I see, I have no
further questions .
11 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: How high is it to the
12 ridge, the garage?
MS . TOTH: 20 point -- it' s just under 21
13 feet.
BOARD MEMBER OLIVA: You have plenty of
14 room.
MS . TOTH: I guess 20 . 9 or 20 . 10 .
15 CHAIRMAN DINIZIO: Anything else, Ruth?
BOARD MEMBER OLIVA: No. Fine.
16 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER: Why do I think
17 when you bring an application -- not you in
particular, but an application comes before this
18 Board -- for a building of this magnitude, I've
never used this phrase but because I've been
19 studying it more -- this is the size of the houses
they built in Levittown in reference to a garage,
20 okay, the 16, 000 houses they built in Levittown,
not necessarily your client, your situation,
21 whatever the case may be, but there are other
reasons to build something of this magnitude, and
22 I think you have significantly stated what the
purpose of this is . My suggestion to the Board is
23 that we put the normal restrictions on it that it
only be used for accessory purposes . Because you
24 do have a second floor even though it' s a cape
style roof with a reverse gable, and the upstairs
25 could be utilized, and again, this has nothing to
do with your clients, it' s clients in the future
March 29, 2007
21
1
2 or proposed property owners, whatever the case may
be.
3 MS . TOTH: Right.
CHAIRMAN DINIZIO: Leslie?
4 BOARD MEMBER WEISMAN: Yes . As you may
well be aware of, we have a new accessory
5 structure code recently passed in January, and I
looked that up, based on your lot size, you meet
6 all of the requirements. It' s large, it' s 720
square feet but 750 is allowed for your lot size
7 since-it' s a double lot. The height is also in
keeping with that new code. So the only problem
8 you face is the fact that you have this unique
situation of a drive through lot and you will
9 never have a rear yard. But it is the
architectural rear yard in that the house, the
10 front elevation of the house is on East Gillette.
More information came into the office and was
11 stated on the application, and you have stated it
for the record that this is to be used for
12 additional cars . Because my original question was
when you have a two-car attached garage, why do
13 you need another garage.
MS . TOTH:. Right.
14 BOARD MEMBER WEISMAN: That was my first
observation. Clearly you have answered that
15 reason, which is for his hobby. As I understand
it it' s to be unfinished?
16 MS . TOTH: Correct.
BOARD MEMBER WEISMAN: And unheated?
17 MS . TOTH: Correct. Only a water spigot
on the exterior.
18 MS . TOTH: And minimal electric for code.
BOARD MEMBER WEISMAN: Right, just to
19 code. I now also understand why it has a domestic
quality to it in terms of the actual architecture.
20 The barn doors are meant to be a drive-through; is
that it?
21 MS. TOTH: Right.
BOARD MEMBER WEISMAN: So you can actually
22 access cars in both directions, and the trellis is
related to a future garden?
23 MS. TOTH: Correct.
BOARD MEMBER WEISMAN: Okay, I just wanted
24 to make sure I understood the facts of the
application accurately. I have no further
25 questions .
MS . TOTH: Thank you.
March 29, 2007
22
1
2 CHAIRMAN DINIZIO: Okay. I guess the only
question I have is are there any future plans for
3 a pool?
MS . TOTH: Not that I'm aware of . I know
4 that they' re waiting on this because they' re going
to put down a patio and then their
5 landscaping. It all hinges on what the Board
decides in regards to the detached garage because
6 that will be incorporated into their landscaping.
I honestly right now can say that I don' t believe
7 there is a pool issue.
CHAIRMAN DINIZIO: It sounds like you' re
8 okay with any restrictions that we might put on it
concerning water and no heat, that' s acceptable?
9 MS . TOTH: That is acceptable.
CHAIRMAN DINIZIO: Okay. Let me ask
10 anybody in the audience if they have any
questions? Anybody up on the Board? I' ll make a
11 motion that we close this hearing pending a
decision on the 19th.
12 (See minutes for resolution. )
-------------------------------------------------
13 CHAIRMAN DINIZIO: Next hearing is for
Paul R. Cadmus, that' s yours, Ruth.
14 BOARD MEMBER OLIVA: It' s a request for a
variance under Section 280-124 based on the
15 Building Inspector' s January 26, 2007 notice of
disapproval concerning an application for a
16 building permit for a covered porch addition at
less than 40 feet from the front yard line at 7005
17 Main Road, East Marion.
MR. UELLENDAHL: My name is Frank
18 Uellendahl, I'm the architect.
BOARD MEMBER OLIVA: You want to make a
19 nice front porch.
MR. UELLENDAHL: I am here with Paul
20 Cadmus, the owner as well, if there are any
questions .
21 BOARD MEMBER OLIVA: You just want to
really fill in that little alcove there?
22 MR. UELLENDAHL: Correct. We' re not
taking up the entire quadrant, we' re keeping the
23 front of the porch two feet beyond the face of the
main house.
24 BOARD MEMBER OLIVA: Just two feet out?
MR. UELLENDAHL: Correct. The porch is
25 eight feet deep and it will be the entire width of
that setback, which is 20 feet.
March 29 , 2007
23
1
2 BOARD MEMBER OLIVA: So it will come out
about eight feet according to your plans here and
3 20 feet across?
MR. UELLENDAHL: Correct.
4 BOARD MEMBER OLIVA: And still leave two
feet?
5 MR. UELLENDAHL: Yes .
BOARD MEMBER OLIVA: It' s a nice house.
6 MR. UELLENDAHL: It' s a beautiful house.
It' s more than 200 years old and it deserves a
7 front porch, and the front porch can only be in
the front, unfortunately it' s within the 40 foot
8 front yard.
BOARD MEMBER OLIVA: I think it will be a
9 very nice addition.
MR. UELLENDAHL: It' s beautiful on the
10 inside as well.
BOARD MEMBER OLIVA: I have no further
11 questions .
CHAIRMAN DINIZIO: Okay, Jerry?
12 BOARD MEMBER GOEHRINGER: No questions .
CHAIRMAN DINIZIO: Leslie?
13 BOARD MEMBER WEISMAN: I have no questions
except the receipt of a letter that we had from a
14 neighbor concerning an existing hedge, and the
concern about retaining that hedge for purposes of
15 privacy. Supposedly the hedge was planted by the
neighbor on Cadmus' s property.
16 MR. UELLENDAHL: That' s correct.
BOARD MEMBER WEISMAN: Can you address
17 that?
MR. UELLENDAHL: Yes. I actually went
18 out, Linda faxed me the letter yesterday, and I
went out to take some photos. This is the hedge
19 looking south and this is the view from the future
porch and you see already the trees in between the
20 neighbor' s porch. I don' t think there' s any
problem.
21 BOARD MEMBER OLIVA: May I just see the
picture?
22 BOARD MEMBER WEISMAN: No further
questions.
23 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: I have no
24 questions .
CHAIRMAN DINIZIO: I read the letter from
25 your neighbor and it seems like she' s basically
asking if you would consider, and I use that term
March 29, 2007
24
1
2 kind of loosely, agreeing to not take off or
maintain that hedge in perpetuity. My personal
3 opinion is what' s on your property is on your
property, and I don' t know if that lady is in the
4 audience?
MR. UELLENDAHL: No, she' s not, I don' t
5 think.
CHAIRMAN DINIZIO: If she had been before
6 us, I certainly would have asked her some
questions concerning, you know, she said she had
7 paid for it and did all that, and she could get us
some receipts. She' s not here. It was a letter,
8 we' re all aware of that letter now. So I have no
further questions other than to ask the audience
9 if they have anything to say in support or against
this application. Hearing none, I' ll make a
10 motion to close this hearing until the 19th.
(See minutes for resolution. )
11 ---------------------------------------------- ---
CHAIRMAN DINIZIO: Next hearing is for Lee
12 and Marie Beninati. That' s Jerry' s hearing.
BOARD MEMBER GOEHRINGER: Request for
13 variance on under Sections 280-15 and 280-38C-1
based on the Building Inspector' s January 4, 2007
14 notice of disapproval, amended February 22, 2007
concerning an application for a building permit
15 for an accessory garage with storage loft (a) in a
yard other than the required rear yard, (b) set
16 back less than 25 feet from the property line,
(c) height exceeding the code limitation of 22
17 feet to the top of the ridge, and (d) dormer
exceeding 40 percent of the roof width. Location
18 of the property: 3070 Peconic Lane and CR48
Middle Road or North Road, Peconic.
19 BOARD MEMBER GOEHRINGER: Good morning.
When you bought this property -- and I just wanted
20 to clear this up -- in and around 2000 is when you
purchased it. I believe that originally there was
21 a variance from the prior owner granted dividing
this into two pieces of property. You have kind
22 of merged into one now; is that correct?
MR. BENINATI: We never merged any
23 subdivision.
BOARD MEMBER GOEHRINGER: You never merged
24 it?
- MR. BENINATI: No.
25 BOARD MEMBER GOEHRINGER: The reason I
asked that question is isn' t the swimming pool
March 29, 2007
25
1
2 actually on the other lot?
- MR. BENINATI : No. The proposed
3 subdivision submitted by Mr. Dart, the prior
owner, would eliminate -- if I may approach?
4 BOARD MEMBER GOEHRINGER: Sure.
MR. BENINATI : The proposed was to
5 subdivide the property, this way, three-quarters
of an acre on 48 and one and a quarter --
6 BOARD MEMBER GOEHRINGER: So you haven' t
done anything with the other piece?
7 MR. BENINATI: I haven' t done anything for
now, it' s a two acre lot.
8 BOARD MEMBER GOEHRINGER: I see, okay.
MR. BENINATI : And I just proposed to put
9 my garage in here but the Building Department told
me that would be front yard, I have two front
10 yards, so they want it in the back yard. We put
it here because geographically it' s the best place
11 to put it. I come up from Peconic Lane.
BOARD MEMBER GOEHRINGER: Thank you for
12 clearing that up. I thought it was the reverse of
that. Let me just ask a couple questions
13 regarding the building itself. And as we have
heard from you in a prior hearing on another piece
14 of property that you' re definitely in need of
garages for the storage of your vehicles .
15 MR. BENINATI : I have no garages at all .
BOARD MEMBER GOEHRINGER: Why did you
16 suggest that location and that close to the
property line as opposed to pushing it back a
17 little bit farther, thereby giving you greater
width to the westerly, northwesterly property
18 line, which is the one next to, it' s Waxler, and I
mean, I realize there' s a shed that' s there, but
19 you' re going to remove it anyway. I would have
pushed it it back farther thereby gaining more
20 setback to that property line. I've been there
two or three times, and I mean, it' s a beautiful
21 back yard, but I'm just, I think it' s just too
close to the property line, that' s number one
22 which, of course, under the new code, which
requires 25 feet.
23 MR. BENINATI : You would suggest that I
put it between the house and the pool?
24 BOARD MEMBER GOEHRINGER: Yes . Push it
back almost to the end of the Waxler' s property
25 line, which is your property line.
MR. BENINATI: But that would be front
March 29 , 2007
26
1
2 yard. According to the Building Department that
would be front yard from Route 48 .
3 BOARD MEMBER GOEHRINGER: I don' t care, it
doesn' t bother me.
4 MR. BENINATI: It bothers them.
BOARD MEMBER GOEHRINGER: It' s just
5 another variance. I don' t mean that
sarcastically. It would give you more room, more
6 access . And again, I know that the back yard --
MR. BENINATI : As you expressed, it' s a
7 beautiful back yard and we take a lot of pride to
see the pool in the back yard from the house. We
8 have a patio in the back. Now, if I put a garage
there, it will kill my back yard. Right now we
9 are planning on making a little walk from the
house to the pool, right now it' s all grass . If I
10 put the garage there, besides -- since there is a
large parking lot, driveway, whatever you would
11 call, to me made a lot of sense put it right there
for many reasons, number one the economics,
12 economics is just need to do nothing with the
driveway. Just drive right there and again, I
13 understand that you are concerned with the
property -- closeness to the property line, but if
14 you look at the site plan, Mr. Waxler' s garage is
nine inches from my property line. And the other
15 neighbor on the other side is 1 .7 feet from my
property line. Yes, I do understand that there
16 are new codes, but the fact of the matter is that
they are there and they are a three-car garage and
17 two-car garage nine inches from my property line.
We think of this location long and hard my wife
18 and I, and we thought this was the most strategic
for my needs. Also, I do plan on having another
19 door in the back of the garage only on one of the
three-car garage because the entrance from Peconic
20 Lane, it' s uphill and I do have a couple cars
they' re very low, and they will never make it. I
21 tried already and they just scrape the bottoms and
they will never make it. So I figure I can go out
22 with one car at least to North Road, which I do
have an entrance there.
23 BOARD MEMBER GOEHRINGER: The specific use
of the second floor is what, Mr. Beninati?
24 MR. BENINATI : Storage only, and also I do
not need any plumbing, my house is large enough.
25 I have enough water in my house. It' s strictly
for storing my toys and upstairs to make storage
March 29 , 2007
27
1
2 for parts or whatever I need.
Also, about the height, I'm planning on
3 since I have more than my wife likes me to say I
have quite a few toys, I was planning on putting
4 car lifts as I explained to Mr. Simon, when I met
him at the property, so I can park my toys, let' s
5 call them top and the cars that we use daily on
the bottom. And the original requirements for
6 this lift was 10 feet high ceilings . I've been
talking to the manufacturers and they tell me it' s
7 12 . Now, if I go 12 feet that means that my
second floor is going to be even lower. It
8 doesn' t make a difference to me because I am going
to use it strictly for storage. I need minimum
9 electric, I need electric just to operate the lift
and just to see what I'm doing. Again, no
10 plumbing, no heat, nothing at all. It' s strictly
for convenience. At night, instead of watching
11 TV, I like to be in my garage and play with my
toys .
12 BOARD MEMBER GOEHRINGER: So you don' t
have any objection to a restriction that it only
13 be used for storage purposes?
MR. BENINATI : I have no problem at all .
14 BOARD MEMBER GOEHRINGER: Let' s go on to
the extension of the dormer exceeding 40 feet of
15 the roof width. Is there any reason why you can' t
meet that 40 feet or it architecturally appears
16 that you' re trying to do something here?
MR. BENINATI: Well, we have what I
17 consider, and a lot of people have been telling me
the same so I assume that it' s true, a very
18 special home. Very unique. It' s over 45 feet, if
if not 50 feet tall, and I need to build something
19 there that somewhat brings everything together. I
don' t want to bring what I call -- my wife don' t
20 like me to use this term -- chicken coops . I want
to build something that belongs there. We have
21 some sort of precedent in the town of Southold
that as late as today we get letters from people
22 about some of the work that we have been doing in
town tastefully, and I just want to do something
23 that belongs there. And I like to give you
something like I would like to achieve. I show
24 you this four bay, I don' t need four bay, I need
three. That we believe is something that somewhat
25 achieves some of the details that we have.
BOARD MEMBER GOEHRINGER: So this is
March 29, 2007
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1
2 basically going to look like an old-time carriage
house?
3 MR. BENINATI : Somewhat, yes, the details,
the finials belong in a house and I just went to
4 the website to try to pick up something that
matches, and I will work with the architect to
5 come up with something like that. It' s going to
be painted the same colors of the house. It' s not
6 finished inside. Again, it' s strictly storage.
I'm paying for three locations right now, rental
7 monthly, and I'm tired of it. Besides it' s hard
for me if I want to do something to drive to three
8 different locations . If I want to change oils, I
do it in one week.
9 MRS. BENINATI: I just want to add that it
really is a necessary addition to the home. I
10 mean, we' re in real estate, you know that. And
not having a garage is a negative in terms of
11 value aside from a necessity. The other thing is
the aesthetics of this garage will be seen from
12 the street, and we have a very, very high house
and a very, very low garage. I think the
13 aesthetics wouldn' t be balanced as does our
architect. Unfortunately, the garage should have
14 been built years and years ago or a barn or there
probably was a barn there many years ago with the
15 appropriate heights that are consistent with the
house, but it' s not there and it' s needed, and we
16 feel that we would ask you to consider that in
terms of granting the variance so that it will be
17 consistent, and it will be beautiful and from the
street it will look like it belongs there and was
18 there for years and years.
BOARD MEMBER GOEHRINGER: I just need to
19 ask your husband one more question, thank you.
The only other concern I have is if the Board was
20 inclined to grant this as the minimum of five
feet, you have some relatively steep roof lines
21 here, how are you going to contain the water
runoff, you know that close to the neighbor?
22 That' s what I'm concerned about.
MR. BENINATI: If that' s a concern for the
23 Board, there is a well, which is a runoff well,
dry well . I can contain the runoff from the roof .
24 BOARD MEMBER GOEHRINGER: You' re talking
about a substantial amount of water here,
25 Mr. Beninati, a lot of water. There' s no question
in this world from the people of Southold town of
March 29 , 2007
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1
2 what you did next door to this Town Hall in
reconstructing that beautiful historical building,
3 but you' re talking commercial gutters on something
like this to contain that kind of water runoff.
4 MR. BENINATI: Well, if I understand
you' re suggesting that I should put some dry
5 wells, I will do that
BOARD MEMBER GOEHRINGER: You' re talking
6 brass gutters, expensive brass gutters to retain
this water runoff. Let' s be honest with you, if
7 it doesn' t go into the ground, it' s going to run
down your driveway, and it' s going to be something
8 you' ll be toying with all winter, running up and
down that driveway.
9 MR. BENINATI: We' ll do whatever it takes
to do it.
10 BOARD MEMBER GOEHRINGER: Thank you.
CHAIRMAN DINIZIO: Leslie?
11 BOARD MEMBER WEISMAN: Yes.
CHAIRMAN DINIZIO: May I interrupt you
12 just for a minute? You' re the architect, tell us
where the dormer is on this so he understands.
13 Because I'm looking at exceeding 40 percent of the
width of the roof and maybe the front doesn' t, but
14 the back does; am I looking at that?
MR. BENINATI: Not necessarily going to be
15 exactly that picture.
BOARD MEMBER WEISMAN: That was my
16 question. In presenting -- this is your
application, this is an image that you' re
17 considering you think may be reduced in size, have
a more appropriate look. This is more of a barn
18 structure type look, which would be certainly
appropriate as well . So my question is we need
19 the final documents .
MR. BENINATI : Right now my biggest
20 concern is the height, I'm staying within 25 .
BOARD MEMBER WEISMAN: 25 foot one inch?
21 MR. BENINATI : Right, and the size which
is 26 by 40 I believe.
22 BOARD MEMBER GOEHRINGER: But we need to
see the dormers.
23 BOARD MEMBER WEISMAN: Yes . You have a
beautiful historic property and as an architect.
24 I would be as concerned as you about making sure
whatever structure was in that close a proximity
25 had a sense of scale and character that was
appropriate to your house. It' s conceivable -- we
March 29 , 2007
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1
2 don' t even have calculations from the Building
Department on what the overage beyond 40 percent
3 is on these dormers, and because these are not in
scale they' re Xeroxed. I couldn' t calculate it
4 because a scaled ruler won' t work on a Xerox, you
have to have the actual scale drawings, so I don' t
5 really know the exact to which you' re over on the
dormer height. The height to the ridge that' s
6 allowed according to the new code is 22 feet, so
you would be requesting a three foot one inch
7 height variance. You are fine on the square
footage. It shouldn' t exceed on your size lot,
8 plus three percent of the total and at 1, 081 . 6
square feet, which is huge, you' re still only 1 .2
9 percent, so although it' s very large, it still is
to code. So the real question is the setback on
10 the side yards, you also have a stand of an old
holly and a couple of other --
11 MR. BENINATI : Yes .
BOARD MEMBER WEISMAN: That I think
12 probably screen that shed a little bit from your
view from the back of your house. You would have
13 to move a little bit of that, it looks like you' d
probably have to move the shed and the holly.
14 MR. BENINATI: Where the stakes are.
BOARD MEMBER WEISMAN: Right, I'm not
15 talking about -- the shed' s here (indicating) .
MR. BENINATI : I'm going to move this, one
16 or two of them.
BOARD MEMBER WEISMAN: You' re going to
17 have to move those over.
MR. BENINATI : Yes, and I'm going to
18 replace.
BOARD MEMBER WEISMAN: Well, if you' re
19 doing that, it' s possible that you could scoot
back a little bit. Here, if you are in this zone,
20 then you' re in a front yard, but if you don' t go
past here, you' re not in a front yard; in other
21 words, this constitutes your front yard off of 48 .
This can come back slightly.
22 MR. BENINATI : If I come with my car this
way and I want to swing in --
23 BOARD MEMBER WEISMAN: So you' ll need a
turning radius .
24 MR. BENINATI: Right.
BOARD MEMBER WEISMAN: So you' re going to
25 come through this alley of trees as sort of just
unpaved --
March 29, 2007
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1
2 MR. BENINATI : Grass.
BOARD MEMBER WEISMAN: You're going to
3 come in on grass, you just have a little fence
here if I recall.
4 MS . BENINATI: Let me just ask you, what
would we accomplish by scooting back? We still
5 have to be pretty close to the side yard.
BOARD MEMBER WEISMAN: You do. But see
6 how it' s slightly tapered here, if you came back
you'd increase that slightly, so you'd probably
7 wind up with instead of a five foot, you'd
probably have a seven foot.
8 MR. BENINATI : We thought of that. I' ll
tell you what the argument was, is that when you
9 look from the driveway and instead of seeing the
building, you would see trees, and then just one
10 of the garage, instead you would look at the whole
garage. Also here, there is a huge, huge tree
11 that we don' t want to cut. If we move this way,
then we' re going to have to cut the tree, that is
12 another issue.
BOARD MEMBER WEISMAN: This is information
13 that' s very important for us to understand. It' s
not in the application. So issues like ingress
14 and egress become --
MR. BENINATI : You see where the tree, the
15 branch --
BOARD MEMBER WEISMAN: We see, sure. The
16 thing I'm concerned about now is that in order to
make a judgment, I would really like to have your
17 final architectural plans; in other words, exactly
what percentage of increased dormer coverage you
18 would be requesting; is it that design or this
design?
19 MR. BENINATI: Most likely --
BOARD MEMBER WEISMAN: Because this looks
20 like a two-story house.
MR. BENINATI: Actually the steeper roof,
21 and the greater number of peaks is more
appropriate to Victorian.
22 BOARD MEMBER WEISMAN: I understand. But
what we really need is a recalculation because we
23 can' t grant you a variance for one set of
conditions -- well, your design shifts . So how do
24 we handle that? I'm done with the questions .
BOARD MEMBER GOEHRINGER: There' s never an
25 anticipation of turning this building around and
having the side of the building facing the road?
March 29 , 2007
32
1
2 MR. BENINATI : It could present that way
but we need to cut down this huge, huge tree. We
3 thought of that too. But it' s still going to be
five feet, seven feet -- five feet away in terms
4 from me to come from my driveway and swing around.
I have to put the building as far back away from
5 the yews .
BOARD MEMBER GOEHRINGER: Are those yews
6 on your property?
MR. BENINATI : Part of it, some of them
7 mine, some of my neighbor.
BOARD MEMBER WEISMAN: Given the
8 circumstances that I now understand in terms of
turning radius and access from two directions
9 because of the clearance of the undercarriage of
your antique cars, I think it' s a very logical
10 location. A five foot side yard is very tough, I
have to say, for a building that size. And I also
11 have the same concerns Mr. Goehringer has for
runoff.
12 MR. BENINATI : Runoff, we' ll take care of
it.
13 BOARD MEMBER WEISMAN: The more peaks you
have, the more steep they are, the more runoff
14 you' re going to have. That would have to be a
condition.
15 MR. BENINATI : I have no issues . We can
do dry wells .
16 BOARD MEMBER WEISMAN: My concern is, and
I' ll reiterate and stop, is just making sure that
17 we' re making decisions for the application before
us, and right now we would have to decide on this .
18 If you don' t want this to be your final design.
MR. BENINATI: You can decide on that,
19 just so you know it' s not a two-family home and
upstairs is going to be basically storage.
20 BOARD MEMBER WEISMAN: You may need to
increase the downstairs height in order for your
21 lift.
MR. BENINATI: Definitely, we need to go
22 to 12 feet, upstairs . I don' t care if it' s seven,
eight, nine, we need that height to be somewhat
23 symmetric with the house that we have.
BOARD MEMBER WEISMAN: It' s for the scale
24 of the property more than for the actual interior.
MR. BENINATI : Right.
25 BOARD MEMBER GOEHRINGER: The last
question I have, the purpose of the lifts are
March 29, 2007
33
1
2 what, to work on the cars?
MR. BENINATI : No, to store, three cars on
3 the top and three on the bottom.
BOARD MEMBER WEISMAN: You do have a lot
4 of toys .
BOARD MEMBER GOEHRINGER: Similar to what
5 you would see in the city in a parking garage.
MR. BENINATI: Exactly. Four posts, one
6 on top and one on the bottom.
BOARD MEMBER WEISMAN: Actually, I have
7 one last question. I was born and raised in
Detroit in my next life time, I'm coming back as
8 an environmentally responsible automotive
engineer. Can I come see them?
9 MR. BENINATI : One of them is stored right
here, you can walk there.
10 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: I have a couple of
11 questions. First of all, I realize we have this
design picture and I'm not quite sure, I'm
12 following up the question on the lift. Now, if
these are just simply a lift for storing cars,
13 does that mean there will be no second floor?
MR. BENINATI : Yes.
14 BOARD MEMBER SIMON: How are we going to
get it from the lift to the second floor?
15 MR. BENINATI: Assuming this is the first
floor of the garage, there' s a four-post lift, one
16 car will be there, and one car will be this high,
and one car will be parked underneath.
17 BOARD MEMBER SIMON: And the cars will not
be worked on when they' re on the lift?
18 MR. BENINATI: Of course not, for storage
only.
19 BOARD MEMBER SIMON: And the second floor
will be used for storage? So the actual second
20 floor --
MR. BENINATI: Empty.
21 BOARD MEMBER SIMON: Will be empty and has
nothing to do with the car operation.
22 MR. BENINATI: I can store tires .
BOARD MEMBER WEISMAN: And there' s a
23 stairway I presume?
MR. BENINATI: A little stairway.
24 BOARD MEMBER SIMON: Couple questions that
_ I have is that first of all, come up with a novel
25 concept which I think should not go unrecognized
is while it' s certainly a concern that there be
March 29 , 2007
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1
2 harmony on the lot between various buildings, that
seems to be running contrary to the part of the
3 code that indicates that accessory buildings
should not be as high as principal structures . So
4 you have a very tall principal structure. So one
of the arguments for asking for a height variance
5 on the accessory building is to make it more like
the principal structure, which is an argument that
6 I haven' t heard before, maybe people who have been
on the Board longer than I have -- so whether this
7 becomes a route by which people can justify
building their accessory structures as tall as the
8 principal structures for the sake of aesthetic and
architectural harmony. So that may be a question
9 as to whether we want to go down that route. And
of course, the reason for it as far as the height
10 is practical it has to do with the requirements of
a lift for doing this . But there' s another
11 problem, and that has to do with the future use of
the property. I don' t think I'm disclosing
12 anything but you did indicate to me that you
ultimately would be expecting to move to the
13 house, where we would consider granting a variance
down in Cedar Beach, and if this house is sold as
14 you indicated, it might be here we would have this
very impressive, very appropriate secondary --
15 this accessory structure for a very wonderful
interesting purpose and presumably you wouldn' t be
16 limiting the potential buyers to people who are
also collectors of toys and who would be needing a
17 lift. So it kind of weakens the strength as I see
it of the argument that of saying because we have
18 these particular needs, this is why we need a
height variance. And one other point, this is an
19 aesthetic point, I admire the main house
enormously and I also like this design, but one
20 thing as far as consistency is concerned, it
strikes me at least as far as these drawings are
21 concerned that the principal structure has gently
sloping roofs whereas the dormers on the accessory
22 structure will be a great deal steeper, so they' re
not going to be entirely consistent with that.
23 There' s no objection to that but it does seem to
weaken the argument for aesthetic harmony.
24 MR. BENINATI : Mr. Simon, I'd like to
answer that question, the plans that I submitted,
25 they were done by an architect which never saw my
house originally. I talked to her on the phone.
March 29 , 2007
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1
2 She' s a wonderful architect. She' s working on my
house on Cedar Beach. I think she' s doing a
3 fantastic job. I was telling the architect, I'm
planning to build a garage for my property, I need
4 to submit plans . She was very busy and after many
phone calls, she said, let me give you something,
5 and she sent that. And I had to submit it. She
never even knew what the house looked like, number
6 one. Number two, as soon as I saw that I knew
that that' s not what we were going to do in the
7 house.
BOARD MEMBER SIMON: Okay, so you' re
8 sensitive to my problem.
MR. BENINATI: Right. But I tried to keep
9 the plan going. Answering your question about us
moving into Cedar Beach, the house that we
10 presented to the Board previously, as I mentioned
to you, the permits are with the DEC, and as you
11 can teach me, DEC we might not see that house
developed in our lifetime, number one. Number
12 two, selling the house on Peconic Lane, that' s a
pipe dream because I don' t know if you noticed
13 what' s next door to my house, and I called the
South Bronx, and I don' t think that house is
14 sellable until something happens that the town
should do about our next door neighbor so we might
15 be in Peconic Lane for the long haul . I might be
selling Cedar Beach before I sell Peconic Lane
16 because economics and because timing.
BOARD MEMBER SIMON: These are responsible
17 answers and I appreciate them. And one would
hope, I'm echoing Leslie here, that we have some
18 idea what the architectural plan or the accessory
building would look like when the architect has
19 some time to create something.
MR. BENINATI: I can get them done by
20 somebody else in a week, I hope.
BOARD MEMBER SIMON: Okay, I have no other
21 questions .
CHAIRMAN DINIZIO: Ruth?
22 BOARD MEMBER OLIVA: I think most of the
things have been gone over about ten times, but I
23 would appreciate the new architectural drawing of
the garage so that we have something in the file
24 for that.
MR. BENINATI: Okay, I will do so.
25 BOARD MEMBER OLIVA: Otherwise it' s a
beautiful piece of property.
March 29, 2007
36
1
2 MR. BENINATI: Okay, what I need to know
from the Board if you can answer that, assuming I
3 get these plans that shows you what the ultimate
garage is going to look like, the set that we
4 talked about is still something, should I planning
on moving, because I don' t want to present this
5 plan and then delay another month or so.
CHAIRMAN DINIZIO: Ruth, are you done?
6 BOARD MEMBER OLIVA: Well, the five foot.
BOARD MEMBER SIMON: We didn' t debate on
7 that question yet.
CHAIRMAN DINIZIO: I can probably give you
8 an answer to that all now. When I looked at the
application quite honestly, not many questions
9 were answered by what was in the file. You' re
asking for a five foot setback when our code asks
10 for 25, that' s an 80 percent variance on the first
application that we have with respect to this new
11 law, we' re going to grant an 80 percent variance
on a law that' s not even a month old yet, I don' t
12 know about that.
MR. BENINATI: Mr. Dinizio, as you can see
13 this application was written before the law was
changed, and there was a little dispute there
14 between the Building Department and the ZBA, which
of course I went with the ZBA even though I was
15 suggested that it was not the right route, but I
understand.
16 CHAIRMAN DINIZIO: I hope you appreciate
that.
17 MR. BENINATI: I do appreciate that very
much.
18 CHAIRMAN DINIZIO: And we have to come to
some kind of grips with that.
19 MR. BENINATI : I do. It' s just that I'm
trying to present something which blends in with
20 the property, blends in with the house and blends
in with the neighborhood. It' s only a garage and
21 again from Mr. Simon saying that the precedent
with the lifts with someone else, I would just
22 need 13 feet, because I don' t care about the
upstairs to be very honest with you. But if I put
23 13 feet next to a 45, 50 foot building as we
talked about, it' s not going to look nice
24 especially looking from the road, it' s not going
to look nice at all .
25 MS . BENINATI: May I say something, Jim?
Also, when you' re saying an 80 foot variance,
March 29 , 2007
37
1
2 that' s based on the fact that it' s two acres, but
the width of the property and where the garage
3 logically goes, it' s really not two acres that
you' re looking at, so I think you should take that
4 into consideration. I know you made a statement
with another person who was applying that you
5 really have to look at the particular property and
what makes sense and where it can go. It' s when
6 you' re looking at the front of the house, it' s
very narrow, I think it' s only 80 feet across if
7 it' s that. So it would be kind of absurd to try
to put it in the middle of the yard. It doesn' t
8 work anywhere else. We' re not doing it because,
gee, we really like it there. It doesn' t work
9 anywhere else.
BOARD MEMBER GOEHRINGER: I would like you
10 to consider turning that building around because
then you would have a greater setback from the
11 property line.
MS . BENINATI : But how would you get to
12 the bay, then you would be looking at the side of
the building from the road.
13 BOARD MEMBER GOEHRINGER: But you can make
the side of the building as pretty and as
14 gingerbread-ish as possible.
MS . BENINATI: How would you get to the
15 bay?
BOARD MEMBER GOEHRINGER: You would have
16 to come in like this and go around.
MS . BENINATI: You would have to go into
17 the garden; is that what you' re saying?
MR. BENINATI : Drive against the yews and
18 turn around into our back yard.
MS . BENINATI: So basically you' re putting
19 the garage in the garden, it doesn' t work, that' s
the problem, no matter what you try to do.
20 CHAIRMAN DINIZIO: Honestly, that' s why
we' re here, we look at the application, I do
21 personally, and then I get my questions and I can
ask them. The setback thing, that is a huge
22 problem with this new law. I mean, if we' re going
to start off granting an 80 plus percent variance,
23 where do you go from there. I understand you've
been in the pipeline for a few months . I'm kind
24 of familiar with the discussions you had with the
Building Inspector. But quite honestly, if you
25 move this back 30 feet, you wouldn' t need the
variance
March 29 , 2007
38
1
2 MS . BENINATI : It would be in the front
yard.
3 CHAIRMAN DINIZIO: But front yard that' s
180 feet away from the road.
4 MS . BENINATI: But do you realize how far
you would have to walk from the garage to the
5 house? I really do think that there isn' t any
other place we could really put this garage.
6 Unfortunately, you do have the setback and the
concerns but the fact of the matter is we really
7 don' t have a rectangular two acre lot. We have an
L-shaped lot. And a very narrow piece of it where
8 the house is and a garden and a pool and the only
place you can really put that garage and the other
9 fact is that all the other garages, all of our
neighbors are right on the property line. Every
10 neighbor that' s close to us, the neighbor that
this would be closest to, his garage is right on
11 our property line.
CHAIRMAN DINIZIO: It has existed there
12 for a number of years?
MS . BENINATI : Yes, exactly, but it' s
13 consistent with what the neighborhood is like. It
is a hamlet area. It is a little town. Actually
14 our property is zoned RO, it' s not agricultural,
it' s not AC. I think that you should consider
15 that as well. We' re right in the middle of town.
We' re not in a more suburban area with different
16 setbacks .
CHAIRMAN DINIZIO: I have one more glaring
17 question, that is the dormer exceeds 40 percent.
We need to have that defined. Quite honestly, the
18 Building Inspector, if he' s going to deny you for
that basically he should be telling us what
19 percentage it is over the code. I realize this is
a new application to the new law, what do we
20 grant, 100 percent variance? Do we say, well, 40
percent but you' re going to go 60 percent, we
21 don' t know. And certainly we don' t know because
if it' s not what you submitted to us, which to me
22 looks like a 100 percent variance, in other words,
you' re going to have a dormer that goes all the
23 way across that building; can you confirm that for
me, the dormer you were turned down for?
24 MR. BENINATI : I'm going to have the
architect draw new plans . It' s not going to be
25 100 percent.
CHAIRMAN DINIZIO: When you have him do
March 29 , 2007
39
1
2 that, can you have him calculate the percentage?
MR. BENINATI : Of course, for the
3 dormers .
CHAIRMAN DINIZIO: We would benefit
4 greatly from that. So, anybody else have any
questions?
5 BOARD SECY. KOWALSKI: There was a
question Mr. Beninati had quite a while ago,
6 whether he should have different setbacks on the
plan. Procedurally, if you want to give an
7 alternative location, if you want to make it 60,
70, if you want to give a couple of different
8 diagrams that you feel you could live with, we
would recommend it. It would save you time.
9 MR. BENINATI: It doesn' t save much,
architects charge by the minute.
10 BOARD SECY. KOWALSKI : You don' t need to
have the architect draw it in.
11 MR. BENINATI : I will. Okay.
BOARD SECY. KOWALSKI: Also just the
12 driveway, I notice that the driveway into the
garage area, if you could show how you get access
13 into the garage that turning angle.
BOARD MEMBER GOEHRINGER: I think I need
14 to have an appointment with you on Saturday
morning if at all available.
15 MR. BENINATI : Has to be Saturday morning?
I'm in real estate. Okay, 7 :30 coffee.
16 BOARD MEMBER GOEHRINGER: Okay, can I ask
we make it about 8 : 00, 8 :15?
17 CHAIRMAN DINIZIO: Anybody in the audience
have anything to say about this application? All
18 right, motion to leave this hearing open until
April 6th at 10 :30 .
19 (See minutes for resolution. )
-------------------------------------------------
20 CHAIRMAN DINIZIO: Next hearing is for
Nancy Boris.
21 BOARD MEMBER GOEHRINGER: I' ll read the
notice of disapproval into the record. This is a
22 request for a variance under Section 280-124 based
on the Building Inspector' s October 24, 2006
23 notice of disapproval concerning an application
for a building permit for an addition to the
24 dwelling at less than 35 feet from the front yard
lot line and with lot coverage exceeding the code
25 limitation of 20 percent. Location is 335 Pierce
Drive and private right-of-way in Cutchogue.
March 29 , 2007
40
1
2 Good morning. Let me summarize a couple
of things . Your property fronts on Pierce and on
3 a 25 foot wide paper road, undeveloped right of
way. You state in your application it' s to the
4 south, but your survey shows north at a diagonal,
it sort of looks southeast.
5 MS . BORIS : Yes .
BOARD MEMBER WEISMAN: And what you' re
6 proposing to do is to create a one-story 16 by 14
foot, three-season room on the back of your house.
7 Your existing front yard setback on the right of
way, that' s why it' s a front yard instead of a
8 side yard --
MS . BORIS: Exactly.
9 BOARD MEMBER WEISMAN: -- is four foot
seven inches, and you are proposing an addition at
10 six foot six inches; is that correct?
MS . BORIS: Yes .
11 BOARD MEMBER WEISMAN: You' ll be adding
two walls and a roof over an existing patio that
12 the new deck is going to be going on to, correct?
MS . BORIS: Yes.
13 BOARD MEMBER WEISMAN: What I want to ask
you is that your property is about 5, 750 square
14 feet; that' s just about an eighth of an acre,
0 . 132 acres . I have a question about lot coverage
15 because the notice of disapproval says on the
Building Inspector' s handwritten disapproval on
16 this survey says 21 . 6 percent, the survey dated
September 17, 2004 four that was presented on
17 January 21, 2007 to the ZBA calculates the lot
coverage with the new addition at 21 .77
18 percent. Your application says --
MS . BORIS : Which I did by hand.
19 BOARD MEMBER WEISMAN: -- says the
increased lot coverage is going to be 23
20 percent. So my first question is what is your
proposed lot coverage?
21 MS . BORIS: I'm going to go with the
surveyor. I sat with a pencil and I guess I
22 shouldn' t have.
BOARD MEMBER WEISMAN: It looks like the
23 Building Department did that as well . So you' re
going to say and that seems like a reasonable
24 thing to say that this survey dated September 17,
2004, received by the ZBA on January 29th, which
25 stipulates the percentage of lot coverage of this
structure to include the proposed three-season
March 29 , 2007
41
1
2 room is 21 .77 percent?
MS . BORIS : Yes.
3 BOARD MEMBER WEISMAN: That clears *that
up. My next question: Will this be an unheated
4 space?
MS . BORIS: Yes.
5 BOARD MEMBER WEISMAN: You' ll have
electric in it?
6 MS . BORIS: Yes .
BOARD MEMBER WEISMAN: Will it be
7 insulated?
MS . BORIS: That' s a good question. I
8 don' t have an answer to that because we didn' t get
into plans . We were going to get into Penny
9 Lumber to get the fellas to give us some
suggestions.
10 BOARD MEMBER WEISMAN: Well, if it' s not
heated, it' s not that I have an issue with it
11 being insulated, I just want to get a sense of the
the extent that you want to finish.
12 MS . BORIS: Well, the interior two walls,
the inside is going to be finished to look
13 finished, we' re not going to leave it looking like
stud.
14 BOARD MEMBER WEISMAN: Sure, and those two
will be insulated anyway, those two walls . It' s
15 just for the record so we make sure we understand
what you' re proposing fully to do.
16 BOARD MEMBER WEISMAN: Let' s see, one lot
to the north I guess is your neighbor' s, they
17 would be to the northwest, it' s a sort of wooded
area.
18 MS . BORIS: Yes.
BOARD MEMBER WEISMAN: The only real
19 visual impact would probably be on the side where
the paper road is.
20 MS . BORIS : Exactly, no one else is really
going to see it. And it' s an area right now that
21 the patio and the backdoor opens up there to a
stoop. So we're just squaring it off. Started
22 out as a deck and it grew to this.
BOARD MEMBER WEISMAN: Well, it will
23 provide you with a nice view of the water
diagonally. I have noticed that the lot sizes and
24 house sizes along Pierce vary substantially. Your
_ house was built on 48 on two small lots totaling
25 50 by 115, so it' s narrow and long?
- MS. BORIS : Yes . Obviously when it was
March 29 , 2007
42
1
2 built they did it based on what they could do
then, and there isn' t much space. But at the time
3 my grandfather owned those lots and he also owned
the lots that were on the water, so where the
4 paper road was all part of the family compound.
BOARD MEMBER WEISMAN: Have you spoken to
5 your neighbor?
MS. BORIS : Yes, the Fosters, yes, I spoke
6 with them on the phone. They got the letter. We
have talked about this. They think it' s fine as
7 far as I know.
BOARD MEMBER WEISMAN: You assume there is
8 no objection from them because we don' t have
anything in the record from any neighbor.
9 MS . BORIS : Right. No, I just spoke to
her when we sent the letters out because I wanted
10 her to look for it.
BOARD MEMBER WEISMAN: Well, you don' t
11 exceed the lot coverage, so it' s really just that
front yard setback along that -- it' s really the
12 neighbor' s driveway.
BOARD MEMBER SIMON: The lot coverage is
13 one and a half percent.
BOARD MEMBER WEISMAN: Right. The one and
14 a half percent increase in lot coverage and front
yard setback that would essentially keep what you
15 have got and be a little bit less .
MS . BORIS : Exactly.
16 BOARD MEMBER WEISMAN: Okay, I don' t have
any further questions .
17 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: Yes, I'm curious
18 about this paper road. I mean, I'd like it if you
would explain a little bit about the history. Am
19 I right that this so-called paper road has trees
running right in the middle of it?
20 MS . BORIS : Yes.
BOARD MEMBER SIMON: It' s hard for it to
21 know it' s a road unless you read it on the piece
of paper. I mean, we have paper roads which need
22 the brush cleared to be usable. Can you tell us
about the history of that?
23 MS. BORIS: Why it' s there?
BOARD MEMBER SIMON: Why is there a paper
24 road at all.
MS . BORIS : Because the lots that are on
25 the water run from the water to the paper road,
and back then they were all 25 foot lots . So if
March 29 , 2007
43
1
2 you sold off the two inside lots it would have
been no access to it.
3 BOARD MEMBER SIMON: Was that supposed to
be a way to get to the westernmost lots by the
4 water?
MS. BORIS : Yes . And that' s what it' s
5 used for now. My neighbors who own the four lots
on the water, part of their driveway comes out
6 over that paper road.
BOARD MEMBER SIMON: But if they' re going
7 from Pierce they can only walk that paper road
right now. How do they drive?
8 MS . BORIS : Their driveway is half on
their property and half on the paper road.
9 BOARD MEMBER SIMON: But not the part of
the paper road that abuts your house because you
10 can' t drive on that?
MS . BORIS: Right, it' s all wooded.
11 BOARD MEMBER SIMON: I have no further
questions .
12 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: No, no questions .
13 CHAIRMAN DINIZIO: Jerry?
BOARD MEMBER GOEHRINGER: No questions .
14 CHAIRMAN DINIZIO: And I have no
questions .
15 BOARD SECY. KOWALSKI: If I could ask for
one little item, an affidavit of signed
16 postings .
MS . BORIS: Right here.
17 CHAIRMAN DINIZIO: Is there anyone in the
audience that wishes to comment? So we' ll
18 entertain a motion to close the hearing pending a
decision on the 19th of April . We' ll meet on the
19 19th of April over at the bank building upstairs,
you' re welcome to come. We' ll take no testimony
20 but we' ll be discussing your case and we' ll vote
on it.
21 MS . BORIS: Okay, then you will notice
me .
22 CHAIRMAN DINIZIO: You can call the day
after and Linda will let you know.
23 (See minutes for resolution. )
- ------------------------------------------- -----
24 CHAIRMAN DINIZIO: Next hearing is for
Thomas Ryzuk. And Jerry that' s your hearing.
25 BOARD MEMBER GOEHRINGER: Yes, this is a
request for a variance under Section 280-124 based
March 29 , 2007
44
1
2 on the Building Inspector' s January 19, 2007
notice of disapproval concerning a proposed new
3 dwelling, after demolition of the existing
structure. The dwelling is proposed at less than
4 15 feet on a single side yard and less than a
total of 35 feet combined side yards setback. At
5 790 North Sea Drive in Southold.
MS . DROZOWSKI : Good morning, I'm Agnes
6 Drozowski, I'm representing Mr. and Mrs . Ryzuk.
Existing there is a one-story house surrounded by
7 exterior decking on the side. It' s set back about
190 feet from the front face of the decking from
8 the street side. The existing house sits on
concrete foundation wall, which is in need of
9 repair. Needless to say our client has come to us,
to our office and asked us to design a new
10 dwelling. We had proposed a two-story structure,
which conflicts one side yard setback at the
11 moment as is shown on the site survey. It is the
westerly side of the property. ' It comes into the
12 nonconforming site of about one foot nine, if I'm
not mistaken, which decreases the 15 foot
13 allowable setback on that side of the property to
13 foot three inches plus/minus, give or take a
14 little bit. And we are here in front of you to
request a variance.
15 BOARD MEMBER GOEHRINGER: Aggie, why can' t
you push it over a little bit more because the
16 wires?
MS . DROZOWSKI : If we push it over to the
17 easterly side of the property it' s going to not be
conforming with that side. We have conforms with
18 the 20 foot setback on the east side and it ended
up pushing the house over to the right a little
19 bit, which now creates a nonconformance.
BOARD MEMBER GOEHRINGER: Okay. This
20 octagon, this five-sided portion of where it says
two-story house, is that a turret or is it an
21 outside deck?
MS . DROZOWSKI: It' s actually a habitable
22 space. It' s two master suites basically, the
first floor master suite and the second floor
23 master suite, follows right above it.
BOARD MEMBER GOEHRINGER: Thank you.
24 CHAIRMAN DINIZIO: Anything else?
BOARD MEMBER GOEHRINGER: No.
25 CHAIRMAN DINIZIO: Leslie?
BOARD MEMBER WEISMAN: The corner piece is
March 29, 2007
45
1
2 also a stairwell that' s lit by a cupola at the
top.
3 MS . DROZOWSKI : It' s a clear story.
BOARD MEMBER WEISMAN: There is no floor?
4 MS. DROZOWSKI: There is no access to it.
It' s purely --
5 BOARD MEMBER WEISMAN: It' s a light well?
MS . DROZOWSKI : It' s a light well above a
6 staircase. To draw you through the journey
upward. What else?
7 BOARD MEMBER WEISMAN: Am I right it' s a
37' 8" inch?
8 MS. DROZOWSKI: 34, 91, actually to the mean
of the - -
9 BOARD MEMBER WEISMAN: -- to the median?
MS . DROZOWSKI : Yes, to the clear story.
10 BOARD MEMBER WEISMAN: One of those
situations again where you' re building on sand and
11 it goes up and up and up and what looks like two
stories becomes three stories before you know it
12 in visual impact.
MS . DROZOWSKI: Yes . The fortunate thing
13 though I think for everybody' s sake and piece of
mind, the house is located within an AE flood
14 zone. We can' t ever possibly make anything other
than above the flood elevation, which is 11,
15 habitable, so it' s like that kind of. I hope that
kind of puts an ease to everybody' s mind.
16 BOARD MEMBER WEISMAN: It' s simply as I go
up and down North Sea on the other side of Kenny' s
17 these really out-of-scale structures are being
built everywhere.
18 MS . DROZOWSKI : Yes, that happens is then
you have to go up on pilings if that' s the case it
19 creates a taller structure.
BOARD MEMBER WEISMAN: Yes, up so much so
20 that the elevator is needed.
MS. DROZOWSKI: Well, that' s a necessity
21 these days. We have been noticing that more and
more.
22 BOARD MEMBER WEISMAN: Yes, well, the good
news is in this situation is that at least the
23 setback situation from the road is enough that
unlike so many other structures that are smack in
24 your face.
MS. DROZOWSKI: Very much so. The house
25 is set back so far in fact, where even the houses
in front of it as they will fit are still in front
March 29, 2007
46
1
2 of it.
BOARD MEMBER WEISMAN: It' s nice you' re
3 not going to be casting shadows .
MS . DROZOWSKI : We're not going to be
4 casting shadows on anyone. It' s a nice site to
have.
5 BOARD MEMBER WEISMAN: I know it well . I
live around the corner. Okay. I have no further
6 questions .
CHAIRMAN DINIZIO: Michael?
7 BOARD MEMBER SIMON: Yes, I don' t have
concerns for the height and I understand that
8 that' s an accommodation to the sand and other
issues, but I am going to raise my general
9 question, which is given that this house is
essentially being started from scratch, being a
10 demo and the code is such that you are called upon
to design something with certain setbacks, the
11 setback of the pre-existing house really has no
bearing on that, what I think we need to hear is
12 some reason why it was impossible given the ample
room both in the front and the back to extend
13 beyond the code set side setback.
MS. DROZOWSKI: When we originally started
14 the design of the home, we had a wish list from
the owner of the property. When we started
15 designing very little concern goes into the size
per se at the very beginning, when we start the
16 preliminary set of plans . At completion of our
preliminary site plans, we realized that we were
17 in conflict with the setback. We sat down with
the owner and we explained to them that the size
18 of the rooms are what they are and we actually
still made compromises to make them smaller per se
19 because mainly I guess of the vast care area in
the middle of the core of the home. The decision
20 was then made to come in front of the Board to see
if at all possible to ask for that little square
21 footage of the 18 square feet of a variance, and
not make any more compromise within the square
22 footage of the home. So in essence is it a
lifestyle we' re asking for in a little way, maybe,
23 we just felt if it was worthwhile to come in front
of you and see if it was, it' s something that
24 could be --
BOARD MEMBER SIMON: Well, there' s no
25 question that it' s appropriate that you be coming
before us . It' s just that one of the things that
March 29 , 2007
47
1
2 you also indicated -- you said it yourself -- is
that in the time of working with the client and
3 drawing the design is conforming to the existing
legal setback is simply not a high priority item.
4 Only as an afterthought you said, oh, I guess if
we thought about this, if we took it more
5 seriously at the outset, we might have come up
with a different kind of design. Now, the
6 variances are that because of other conditions,
it' s not reasonable to do it any other way. In
7 fact, that' s always one of the questions, as you
know that' s in the code that we' re supposed to
8 consider is was there another way of doing it
because clearly this is a self-created difficulty.
9 It could have been avoided so that' s something
that I think we would want to address and inviting
10 you to give as much as you can to help us decide
if you can give anything further to help us
11 decide.
MS . DROZOWSKI : If I may, in fact, in
12 reality as everyone knows, we have done it, and a
lot of people do it, we could have used the
13 existing footprint of the existing home and
actually used some of that existing square footage
14 lot coverage that' s very nonconforming. And I
know it really doesn' t have a relevance to what
15 we' re proposing, but in reality we could have
taken that bulk of the house that we have now
16 created, which is the proposed new dwelling, and
situated within the same footprint and still be in ;
17 front of you asking for a much greater
nonconformance. So in the back of our minds it
18 does make that a part of the application to an
extent due to its existing nonconformance. And I
19 hope it' s making a lot of sense. I've gone
through it in my mind so many times and we would
20 have, but we said it' s so nonconforming, let' s
shift the house, let' s take it, let' s start from
21 scratch and it so happened that unfortunately,
yes, we did go beyond a little bit with the
22 octagon tower and that is self-created, I agree
with that 100 percent, but it' s something that we
23 would like to see if at all possible to get
approved based on the design that we have in front
24 of you.
BOARD MEMBER SIMON: I have no further
25 questions .
CHAIRMAN DINIZIO: Ruth?
March 29 , 2007
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1
2 BOARD MEMBER OLIVA: No, I think they have
covered everything.
3 CHAIRMAN DINIZIO: And I have no
questions . Anybody in the audience who would like
4 to comment on this for or against? Are you
finished with your presentation?
5 MS. DROZOWSKI: I'm finished.
CHAIRMAN DINIZIO: I' ll entertain a motion
6 to close this hearing until we make a decision on
April 19th.
7 (See minutes for resolution. )
---------------------------------------------- ---
8 CHAIRMAN DINIZZO: Next hearing is for
Pericles Notias . This is you again, Jerry.
9 BOARD MEMBER GOEHRINGER: Request for a
variance under Section 100-30A.3 (280-18) , based
10 on the Building Inspector' s March 30, 2005 notice
of disapproval concerning an as-built dwelling
11 exceeding the code limitation of two and a half
stories at 675 Summit Drive, Mattituck.
12 BOARD MEMBER GOEHRINGER: How are you
today, sir?
13 MR. GOGGINS: Good. I' ll put my
appearance on the record. William Goggins with
14 the Law Firm of Goggins and Palumbo, 13105 Main
Road, Mattituck. I'm doing good, Jerry, how are
15 you?
BOARD MEMBER GOEHRINGER: Good, thank
16 you. Of all the applications we have had before
us I find this one somewhat baffling in reference
17 to the Building Inspector' s determination, and
I' ll tell you the reason why. There' s a huge
18 change of elevation between where the actual pool
deck and porch, that magnificent porch area, and
19 the lowest portion of the lowest floor of this
house, which is of course the garage floor. It' s
20 my understanding there' s about an 18 foot
difference between those two elevations . I stood,
21 and don' t live terribly far from here, and watched
cement truck after cement truck putting probably
22 one of the most expensive foundations I have ever
seen while this house was being constructed and
23 the retaining walls that exist primarily on the
east side. There is no doubt that there is room
24 downstairs adjacent to the garage, but the actual
house itself sits on that pedestal of evenness
25 where that actual flagstone deck area is and that
really is the first floor of the house. So I have
March 29 , 2007
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1
2 to tell you that my normal questions in reference
to three stories are pretty much out the window.
3 I really can' t see it based upon this . It' s built
into the hill, and that was really the only way it
4 could be constructed. As you know, this piece of
property has been for sale for many, many, many,
5 many, years. It took probably 20 years to get the
right person to even attempt to make this
6 construction. I don' t even want to think of what
that foundation cost. I was with a gentleman in
7 Florida recently at the Outback Steakhouse and he
told me he just finished a foundation in
8 Pennsylvania County in North Carolina that cost
$318, 000 . That was the foundation, and I don' t
9 think Perry paid anywhere near that for this
foundation, but I got to tell you just seeing
10 those truck loads of cement coming up there and
struggling that hill. There' s no doubt that he
11 has a wonderful water view, I have not been in
this house, but I'm speechless on this one. I
12 don' t know what -to say other than the fact that I
know how difficult it was to build on this, and
13 I' ll leave it at that. I reserve the right to ask
any other questions.
14 CHAIRMAN DINIZIO: Leslie?
BOARD MEMBER WEISMAN: Can you - - it would
15 appear that the height from the lowest grade to
the ridge is 45' 511 . Can you tell me what the lot
16 coverage is? I don' t see it on the survey.
MR. GOGGINS : I think we submitted the
17 document in conjunction. I didn' t bring that.
BOARD MEMBER WEISMAN: Let me see if it' s
18 on the application, 27 .39 percent. I am getting
that off the applicant' s project description right
19 here. It says the lot coverage is 27 .39
percent.
20 BOARD SECY. KOWALSKI: That might be the
DEC' s lot coverage calculation because they
21 need --
BOARD MEMBER WEISMAN: Well, okay, it just
22 says percentage of coverage of your lot by
building area is 27 .39 percent.
23 BOARD SECY. KOWALSKI: The DEC includes
driveways and sidewalks. Other areas that
24 Southold doesn' t.
BOARD MEMBER GOEHRINGER: It would have to
25 be that entire area around the pool too.
BOARD MEMBER WEISMAN: I would think so.
March 29, 2007
50
1
2 BOARD MEMBER SIMON: I think we need to
see some numbers, we need something more
3 quantitative.
BOARD SECY. KOWALSKI : That' s the figure
4 the applicant gave, but we don' t know how they
came to that.
5 BOARD MEMBER WEISMAN: That' s why I was
questioning.
6 BOARD MEMBER SIMON: It certainly was not
in the applicant' s best interest to put in that
7 high percentage without further explanation,
especially if there is further explanation.
8 CHAIRMAN DINIZIO: I think the applicant
can give us calculation based on the Southold town
9 code.
MR. GOGGINS: That' s correct. And
10 actually, I don' t think this issue is before the
Board.
11 CHAIRMAN DINIZIO: No, it' s not, but
there' s a question that certainly should be
12 answered.
MR. GOGGINS: Yes. And I don' t know what
13 the answer is other than I'm not a surveyor, I'm
not an engineer. When I was asked for the
14 calculations I went to the professional and they
gave them to me.
15 BOARD MEMBER GOEHRINGER: You could do
this basically, the advantage of having these day
16 hearings is go over to the Building Department and
say does this exceed the lot coverage.
17 CHAIRMAN DINIZIO: Well, he wasn' t turned
down for it. So I don' t know that that --
18 BOARD SECY. KOWALSKI: I don' t think they
furnished the Building Department with percentages
19 because they thought it probably meant 20 percent.
MR. GOGGINS : Right, I don' t know.
20 BOARD MEMBER WEISMAN: I raise the
question because this is such an unorthodox
21 application to have a completely inhabited
as-built structure that is that high obviously it
22 varies from grade to grade, but in my mind, this
is not a very straightforward situation.
23 MR. GOGGINS : If I could address that?
BOARD MEMBER WEISMAN: Yes. I mean, I
24 wonder why it didn' t get some sort of disapproval
to begin with before it was built.
25 MR. GOGGINS : We feel that that isn' t
really an aberrant situation. I'm going to go
March 29, 2007
51
1
2 through these (handing) one at a time to show that
this isn' t really an aberrant situation. Property
3 Number 1 on the left -- let me back up. I have a
couple pages, they are a list of properties by tax
4 map number, name and address and then I've got
Section 106 of the Suffolk County Tax Map, as well
5 as Section 99 of the Suffolk County Tax Map. What
I did was I put a relationship between the numbers
6 of locations of properties and put those numbers
on the tax map and will relate them. Then the
7 photographs, on the back are numbers . So Number 1
is the applicant' s property, photograph Number 1
8 is a picture of the applicant' s house, and Number
1 is Section 106, which is the location of the
9 house. I have also highlighted in yellow where
all these houses are. So this is the
10 applicant' s. You go to Number 2, actually this
house is directly north of the applicant' s house,
11 and this shows the same situation, is the cellar
with the sliding glass door and certainly all
12 above grade, the first floor and the second floor
there too. You go to Number 3, this property is
13 on Suffolk Drive, it goes along the beach. This
one shows a two-car garage on the base level, then
14 that' s the first story, then second story' s above
that. If you look at this one, there are three
15 sides that have no grading on it. So 75 percent
of this house is not under grade and this thing
16 was built according to the assessor' s code in
1985 . Go on to Number 5, which is under
17 construction right now. That shows the same
thing, two-car garage and what appears to be the
18 cellar floor and first floor and second floor. if
you look at this this would be the north side, and
19 the east and west side, there' s no grading at
all. So I guess they' re going to backfill it, who
20 knows, and I think that' s what happened with the
applicant' s property. They put the foundation,
21 they went to backfill it, and they didn' t backfill
it enough to comply with the code. I think that' s
22 what happened. This is just down the road and
it' s exactly what we have with what the applicant
23 has .
If you go to the next one, Number 6, you
24 have 6A and 6B, 6A shows what appears to be a
normal two-story house although 6B photo is kind
25 of blurry, you can' t really see it, but there' s a
garage on the side, and there' s no grade around
March 29, 2007
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2 the foundation.
The next one is Number 7, this is also on
3 Summit Drive. It' s tough to get photos all around
these houses without trespassing, but I didn' t
4 trespass . This shows the same thing, we have a
two-car garage, the house is built on a hill and
5 around the side, you can' t really see obviously
the deck and probably the whole basement on that
6 side.
Number 7, Number 8, this is almost across
7 the road from the applicant' s house, and on the
front you have this enclosure. I drove up the
8 driveway on 8B. That also shows a two-car garage
and what appears to be the cellar level . Number
9 9, again, it shows the garage on the basement
level, and again it' s tough to tell from the
10 pictures, but it just appears that the whole front
of this house is not upgrade at all, there' s no
11 grade against it, and the east and west side also,
there' s really no grade. So this is about 75
12 percent of the basement is exposed.
Next one is Number 10, it' s on Central
13 Drive also in the neighborhood. Same situation,
two-car garage, the grade currently is not at 50
14 percent either. That' s also in the neighborhood.
Number 11, Michael and Karen Davidson, photograph
15 8A on the front the house is fine, normal house;
then go to 8 -- 11C, go around back and the whole
16 back is exposed, there' s a sliding glass door,
it' s obviously living space. I think that' s what
17 you looked at at the applicant' s house; you see
the front is, oh, gee, look at how huge this is .
18 But the back of the house, you maybe don' t notice
it as much.
19 MR. GOGGINS : Next one is Number 12, John
Cleary, 1350 Central Drive. The same situation
20 it' s pretty obvious. Number 13, on Karen Stitman,
I think this does meet the 50 percent rule, but
21 it' s tough to tell. Number 14, go off the road a
little bit further. It' s probably owned by Luck
22 Miller, she' s a nice woman, I know her. She had a
building permit in 2003, if you look closely at
23 this photograph you can see that all three sides
of the basement are exposed. And I didn' t want to
24 go around either but we have three sides that are
exposed not on the grade, and the Building
25 Department gave a CO on this . Next one Number 15
I intentionally deleted; that was on Bayview
March 29, 2007
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1
2 Drive. Number 16, Robert Buckingham, the reason
he built the house on Bayview Drive, same thing,
3 it' s built on a pretty substantial hill . The next
one Number 17 is 1956 Bayview Drive took this from
4 a friend' s house from her driveway. I'm not sure
when this house was built, it looks like the
5 siding was done probably in the 180s sometime.
Moving on down the road, Number 18 the back of
6 this house, definitely the whole back of this
house is exposed. And the house next to this
7 house is owned by the superintendent of Mattituck
High School, this is the back of his house. So
8 you can see 18 of the houses in that area, I'm
sure I could have found more in that area. All
9 these houses are part of the hamlet of Mattituck
and the reason why I guess these photos are
10 important it shows the topography of the area.
It' s a very hilly area. Almost all the houses
11 have some sort of exposure, and it appears that
sometimes the Building Department looked closely
12 at it, sometimes they didn' t. And I think what
happens is when they build these foundations,
13 there' s a full expectation to bring the grade back
to 50 percent and sometimes the contractors don' t
14 do that, and I think that' s what also happened
with Mr. Notias. I found a correspondence that
15 was dated October 17, 2003 that was given to the
Building Department stating that what they' re
16 going to do is make it comply with the 50 percent
rule, and I don' t think the contractor backfilled
17 it as much as the contractor should have, and I'm
not sure because of the severe grade after they
18 put the foundation in or not, but that' s what
happened. So they don' t have the more than 50
19 percent grade against the foundation as they
should. Actually, instead of having less than 50
20 percent exposed, they have got 60 . 1 percent
exposed as set forth in the plan that we
21 submitted to your Board dated January 16, 2007,
where Inspector Jeffrey T. Butler did the
22 calculations .
BOARD MEMBER GOEHRINGER: So 60 . 1 percent
23 is covered?
MR. GOGGINS: 60 . 1 percent is covered,
24 which means that we' re asking for an 8 . 3 percent
variance. You saw the cost, you saw all the
25 brickwork, Mr. Goehringer alluded to it before. I
mean the cost to redo the decking, the entrance
March 29 , 2007
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1
2 around it with all the brick and the cement, the
cost would just be prohibitive in addition to
3 bringing the fill in and doing it.
So, I don' t know if the Board has any
4 questions, but certainly, this is not abnormal in
this neighborhood.
5 CHAIRMAN DINIZIO: You got me totally
confused about this, quite honestly, and it' s
6 not -- it has more to do with the notice of
disapproval because I thought we were looking at a
7 two and-a-half story house or a three-story house,
you' re discussing grading.
8 MR. GOGGINS: Well, because that' s what
makes it a three story. It' s more than 50 percent
9 of the basement is exposed, then it' s deemed a
third story.
10 BOARD MEMBER OLIVA: You' re right.
MR. GOGGINS: In order to keep it that way
11 you'd have to put in a sprinkler system, according
to New York state law.
12 CHAIRMAN DINIZIO: Okay. But I don' t
think you' re trying to avoid that.
13 MR. GOGGINS: Of course not.
CHAIRMAN DINIZIO: You' re just trying to
14 get approval or some remedy concerning grading. I
mean, could you now. I mean, could you now, I
15 guess, take dirt and pile up it up and at
8 point -- whatever it is -- 3 percent more and
16 -then go back to the Building Inspector and say, go
back here, I meet the code?
17 MR. GOGGINS: I'm sure we could and
probably it' s already been done, just throw some
18 dirt against the foundation so you can' t see it
and we comply, and I'm sure the Building
19 Department said no, you can' t do that. But I
don' t know, I'm guessing it' s a hypothetical
20 question, but yeah, theoretically, yeah, throw
some dirt against it, you don' t see the actual
21 cement and you' re good. I mean, I think that goes
against the spirit intended probably, but
22 technically, yes, that' s what you could do. I
think the proper avenue is through a variance.
23 CHAIRMAN DINIZIO: I mean, it' s just my
unfamiliarity with how this comes about. I'm just
24 unfamiliar with that.
MR. GOGGINS: Well, I think it happens
25 every time you build a house on a hilly piece of
property.
March 29 , 2007
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1
2 CHAIRMAN DINIZIO: Well, obviously it
doesn' t.
3 MR. GOGGINS: Well, obviously the Building
Department just doesn' t enforce it or they look
4 the other way if they see that there' s a deviation
in it and apparently this time they didn' t.
5 Because it was all these homes in that one area, I
could probably go throughout Southold town and
6 probably find another five hundred to six hundred
houses like this .
7 BOARD MEMBER OLIVA: I agree.
MR. GOGGINS: And if I was able to go
8 after every one of them and measure them with an
engineer, I would bet you 50 percent of them
9 violate this 50 percent rule.
CHAIRMAN DINIZIO: Okay. Now, where are
10 we? Jerry, you asked the questions . Leslie?
BOARD MEMBER WEISMAN: Yes, I have a
11 question. In a couple instances here, like this
Number 5 on Sound Beach, I believe that this
12 property is within the flood zone, and deemed by
law cannot be inhabited at the bottom level, and
13 we have been receiving applications all around,
which are again creating really visually
14 three-story structures, as a consequence of being
in the flood zone, and many of them are
15 sprinklered because they do constitute three
story. So of the examples provided, do you have
16 any idea of how many of those are in the flood
zone and how many are sprinkled?
17 MR. GOGGINS : Only two are in the flood
zone, they' re Number 4 and Number 5 .
18 BOARD MEMBER WEISMAN: So all the others
it' s a grading issue primarily that makes them
19 three stories?
MR. GOGGINS : Yes.
20 BOARD MEMBER WEISMAN: So, I think we' re
just going to really think this one through
21 because I presume the house is not sprinkled?
MR. GOGGINS : It is not.
22 BOARD MEMBER WEISMAN: Okay, I'm done.
CHAIRMAN DINIZIO: Michael?
23 BOARD MEMBER SIMON: I think your
fascinating narrative is very useful. One thing
24 it does is it gives a very good answer, not a very
pleasing answer, but a very good answer to the
25 question I was going to ask in the first place:
How did this happen? Where was the Building
March 29 , 2007
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1
2 Department? And what you have shown is it happens
all the time. And it' s not even direct
3 speculation, but it' s still speculation of whether
it' s a grading problem or problem of a failure to
4 build or it' s simply a matter that we have one
thing happening after another. It' s as though
5 there are two worlds; one is the world of the code
and the other one is the world of what happens on
6 the ground, especially Captain Kidd.
Now, as you are a lawyer and your argument
7 depends on acting as if this is a common law
regime rather than a code regime, in other words,
8 the fact that something happened in the past
that' s contrary to the code is really not of prime
9 importance, it' s simply the fact that it happened
and lots of people have been doing it, and we can
10 guess as to why it was they were going to
fill . One could also say that the problem was not
11 the lack of filling, the problem was designing a
house higher than it needed to be, and then with
12 the hope or not caring whether it was going to be
filled or not. I mean, I looked at this house
13 pretty carefully just yesterday, and I looked
around and saw it was made to look kind of two and
14 a half stories on the road side, and then kind of
like two and a half stories on the south side, but
15 of course, they' re different stories, and it' s 13
steps and of course we notice that when you walk
16 around the first floor, we want to know exactly
what kind of rooms are they. They' re all
17 shutters, green blinds . So whether there are
bedrooms there or whether it' s the utility room,
18 we don' t know, and that might be relevant if we
were concerned at all with the 50 percent rule
19 with regard to what counts as a first floor and
what doesn' t count as the first floor, but your
20 argument depends essentially on the fact that
everyone is doing it. And this is no worse than
21 the rest of them. And we, the Board, had a
similar case, also on Sound Avenue I believe, very
22 much like Number 5, although I don' t think it' s
the same one, where the additional wild card --
23 not wild card but the additional factor of the
proviso came in to justify doing something which I
24 think we all were unanimously embarrassed about
because we produced something, which regardless of
25 what the technicalities were, looked awful . It
shouldn' t have been that high, and they went to us
March 29 , 2007
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1
2 for a variance because this is one that didn' t get
passed on by the Building Department, and we
3 passed on it, and I was hearing people -- I
happened to be the only one who dissented on it I
4 believe, but maybe I was persuaded by everybody
else and now, guess what, not only is it
5 continuing to happen, but it happens all the
time. Yes, something that we have to look hard at
6 but it may be bigger than the Zoning Board; it
really has to do with the frustration of how a
7 town government deals with the code when it treats
the code as it' s a set of guidelines and the
8 effect of this depends entirely on how many people
deviate how far from what happened. And that was
9 brought up before by Jim with regard to the new
accessory code. If there' s a new line in the code
10 beginning in January and having to do with
setbacks for accessory buildings . So he hit one
11 where we' re almost asked to give I think something
like an 80 percent relief to the recently enacted
12 setback. As Jim I think correctly pointed out,
boy, that' s sure sending a message of that
13 particular code that was debated for a long time.
So it' s a big issue. Your client is no worse than
14 everybody else' s. But the argument is to a lawyer
it' s kind of embarrassing.
15 MR. GOGGINS : Well, you know, you couched
my argument that I'm not making it that way. I'm
16 not saying that because everybody else is doing
it, why can' t we. What I'm saying is when
17 somebody builds a house on a hill and they try to
do it in conformity with the building plan and
18 getting the right grading, that sometimes they
make a mistake that when they put the foundation
19 in, and the property has such a steep grade that
they get the grading required to meet the 50
20 percent rule and I think that' s happened here.
The builder probably said the Building Department
21 said yes, we see the property, we see the plans,
go ahead and build it, then when they built it and
22 went to regrade it, they didn' t do it all the way
for whatever reason, it wasn' t that they looked
23 around and said everybody else is doing it why
can' t we do it, that' s not my argument. My
24 argument --
BOARD MEMBER SIMON: I know, it' s not your
25 argument. We can only speculate upon as to
motives whether somebody --
March 29 , 2007
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1
2 MR. GOGGINS: It' s not a motive. They
made a mistake. The builder forgot -- didn' t
3 forget, the builders didn' t regrade it as much.
BOARD MEMBER SIMON: Do you have any
4 evidence that the builder intended to regrade it
and simply failed on that particular part of it?
5 This is speculation.
MR. GOGGINS: Yes, I do have evidence.
6 There was a submission to the Building Department
which I alluded to before. It was a fax
7 transmission dated October 17, 2003, and I believe
this one to the Building Department where they
8 talked about what was going on with the property
and what they needed to do and how to get it back
9 to grade and that was the intention to do it, no
question. So when they did it and the house was
10 finished and the grading was done and all the
landscaping and the brickwork and so forth, and
11 the Building Department came and did an inspection
they found that, you know, it violated the 50
12 percent rule, and they decided it was a three
story. So the reason why we' re coming here for a
13 variance and again, it' s not a huge variance, it' s
not an 80 percent like the other application that
14 was heard today, it' s an 8 .3 percent variance.
And you know, was it self-created? Well, not by
15 the owner. The owner hired a contractor to build
the house and comply with the New York state
16 building code and the contractor didn' t backfill
it as much as the contractor should have. So,
17 that' s why you come to the Zoning Board for
variances because there are aberrant situations
18 that happen. Those photographs show other
situations where this also happens . So I don' t
19 think it' s uncommon that it happens especially
where you have the topography that you have in
20 Captain Kidd Estates where the slopes are pretty
severe. I mean, I walked up that driveway. I
21 actually was having a hard time walking down the
driveway because it was so steep.
22 BOARD MEMBER WEISMAN: Wait until the snow
hits .
23 MR. GOGGINS : Thank God for that because
during the winter it will be a nightmare.
24 BOARD MEMBER OLIVA: I wouldn' t even drive
the car up.
25 MR. GOGGINS : I agree. It' s very steep.
BOARD MEMBER SIMON: One more thing, we
March 29, 2007
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1
2 had a case two months ago in which the argument of
honest mistake was raised, and we looked at it
3 closely and asked for testimony and we were
convinced, and I was realized that was one of a
4 very, very few cases of a mistake which didn' t
somehow resound with the interests of the
5 applicant. So somehow honest mistakes don' t
distribute both ways, they only distribute into
6 the favor of the applicant and against the writing
of the code. So it' s very hard to take that --
7 we' re not allowed and we shouldn' t be talking
about motives or intentions or what people
8 thought. I guess we have to look at the facts as
we see them. And if we have to say that in order
9 to justify a variance we have to convince
ourselves that it was an honest mistake, then I
10 think we' re kidding ourselves .
BOARD MEMBER WEISMAN: Can I have a
11 follow-up question?
BOARD MEMBER SIMON: Yes, I'm done.
12 BOARD MEMBER WEISMAN: I have one
follow-up question. On site inspection I didn' t
13 observe nor do I see on photographs of the
property any gutters or leaders, and it' s an
14 incredibly severe slope, which is causing all the
problems . It' s very full lot coverage based upon
15 how it' s graded and the retaining walls, so the
runoff is going to be severe.
16 MR. GOGGINS: There was a drain on the
driveway.
17 BOARD MEMBER WEISMAN: I noticed that a
cattle drain. I know, right at the bottom that
18 only has to do with the runoff on the driveway
capturing that groundwater runoff. But I am a bit
19 concerned about the lack of roof runoff control on
the premises, and I simply want to bring it up for
20 the record that that is a condition that although
not cited in the notice of disapproval is
21 something much like lot coverage, which is also
not cited. It' s of concern to me in any case.
22 MR. GOGGINS : I understand.
CHAIRMAN DINIZIO: Okay, Ruth.
23 BOARD MEMBER OLIVA: No. I went all
around it and I saw the other properties too and
24 the difficulty in building anything -- I don' t
know how the contractors got some of the tough
25 stuff up there frankly. I don' t like the idea of
a third story, but what' s there is there. You
March 29, 2007
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1
2 couldn' t come back there and cover that. It would
wash away. And they' re all like that up there.
3 Not that one' s better than the other or worse than
the other, but they all are, some of them are 50
4 foot high with retaining walls that have fallen on
the side and had to be replaced because the other
5 next door neighbor was lower, whose fault --
CHAIRMAN DINIZIO: Do you know when this
6 house was built?
MR. GOGGINS : No. Recently. I think it
7 was around 2003 but I could find out.
BOARD SECY. KOWALSKI : The calculations
8 were October, 2003 .
MR. GOGGINS : Those are the ones I gave
9 you?
BOARD SECY. KOWALSKI: We don' t have a
10 copy of the building permit.
MR. GOGGINS : I could go get it today. I
11 can walk over and get the building permit.
BOARD SECY. KOWALSKI : Just the date.
12 MR. GOGGINS : You want a lot coverage,
correct, I could get that.
13 CHAIRMAN DINIZIO: Okay. Anybody else
have any questions? I have no questions other
14 than my confusion.
BOARD MEMBER GOEHRINGER: The purpose of
15 my testimony was very simply to reinforce the fact
of my observations during the construction of this
16 because I live in the neighborhood, and I have to
tell you, it was an extremely expensive foundation
17 and in an attempt to do what they needed to do for
code to put that foundation in to build this house
18 as it exists today, and because of the steepness
of the grade, I can see why it' s very difficult to
19 get more fill in there. I mean, you couldn' t even
turn a truck around in there if you tried to bring
20 fill in and put it up on that western side, you
couldn' t back a truck up that road.
21 MR. GOGGINS: Not now.
BOARD MEMBER GOEHRINGER: And try and
22 transverse that front lawn and get around that
corner, there would be no way you could do it.
23 BOARD SECY. KOWALSKI : The reason I asked
for the building permit date that calculation was
24 given to the building permit in 2003, why was
there so much time to find out that --
25 MR. GOGGINS: It' s just something I found
in the file and I looked at it because I was
March 29 , 2007
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1
2 thinking about the calculations and the
percentages. First I thought it was new and I
3 started looking at it more closely and I thought,
oh, it' s fine, and then I looked more closely and
4 I realized it was old as compared to the January
2007 calculations that we submitted on that large
5 map. So it wasn' t until then I realized it was an
old calculation.
6 CHAIRMAN DINIZIO: What brought the
Building Inspector to the house; was it because it
7 didn' t have a CO?
MR. GOGGINS: I think. And I don' t know
8 but I'm assuming they went to issue the CO, they
went to do the final inspection.
9 CHAIRMAN DINIZIO: Just like three years
after?
10 MR. GOGGINS : Right. But you know this
has been sitting in my office a long time because
11 I kept on waiting to get information from the
engineer and from the surveyor. I was hoping to
12 submit this I think back in June, 2006, but I
wasn' t getting the information the Board
13 needed. So that' s why it took so long to get
here.
14 CHAIRMAN DINIZIO: Then I' ll ask anybody
in the audience if they have anything to say about
15 this application? Okay, I' ll ask the Board
members what their preference would be. We can
16 close it pending information that he would like to
submit, or we can leave it open in case something
17 that he submits is not what we need.
BOARD MEMBER GOEHRINGER: I think we
18 should close it and let Mr. Goggins bring the
stuff back for us this afternoon. If for any
19 reason he needs to explain something, we' ll give
him five minutes to explain it if he needs to.
20 BOARD SECY. KOWALSKI: I don' t think you
can give him a time limit.
21 CHAIRMAN DINIZIO: Okay. So that' s your
motion, Jerry.
22 (See minutes for resolution. )
-------------------------------------------------
23 CHAIRMAN DINIZIO: Next hearing is for
Joseph Gulmi and Susan Braver, that' s Michael' s
24 application.
MR. GULMI: I am Mr. Gulmi and this is my
25 wife Susan.
BOARD MEMBER SIMON: We have already
March 29, 2007
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1
2 discussed this, have we? This is a request for a
variance under Zoning codes Section 280-105 based
3 on the notice of disapproval request for relief
from the condition under ZBA Number 5340
4 concerning the setback location of an as-built
pool at less than 30 feet from the front lot line.
5 And I don' t see it on here, but there was an issue
about the height of the fence as I recall, which
6 was -- I don' t have the notice of disapproval in
front of me, but does it mention it on there?
7 BOARD MEMBER WEISMAN: Yes, here' s the
notice.
8 BOARD MEMBER SIMON: It doesn' t say
anything about the fence, though.
9 BOARD SECY. KOWALSKI: Yes .
BOARD MEMBER WEISMAN: Hold on, here it
10 is . Not in the legal notice but in the notice of
disapproval.
11 BOARD MEMBER SIMON: Okay, that wasn' t
covered in the legal notice. The as-built fence
12 is not permitted. There is a four foot fence
there, and the applicant has argued that under the
13 circumstances a four foot fence is insufficient,
and there is a question regarding the location of
14 the swimming pool and there is some communication
from neighbors on this and I will let Mr. Gulmi
15 address this application and to speak for it .
MR. GULMI: Certainly. Thank you, good
16 morning. There are two requests . One is to
actually modify a variance that this Board
17 previously gave permitting us to install a
built-in pool in our front yard. We abut the
18 wetlands and have essentially no backyard. When
that variance was granted, we were allowed to put
19 the pool in, but it needed to be 30 feet from the
northerly and westerly property line. You' ll see
20 there' s a blow up of the survey that we had done
after the pool was installed and this was a
21 fiberglass pool that was set into the hole. The
northerly boundary of our property, the pool sits
22 32 feet from that property line, and on the
westerly property line -- the southern portion of
23 the westerly property line, the pool sits 30 feet
from the property. However, in the -- I' ll use
24 the term northwesterly area of the property line,
the pool is two feet closer to the property line,
25 it' s 28 feet. And I think when they set the pool
down it canted a little bit and nobody picked it
March 29, 2007
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1
2 up. It was set in with a boom and I don' t think
the boom arm went out far enough, so it didn' t
3 quite make the 30 foot mark on the northerly line,
and I think the weight of the pool started to take
4 over and it went down. I wasn' t there, but that' s
my speculation. Certainly the contractor, I don' t
5 think was trying to set the pool akimbo to the
property line. I think it just happened and it
6 didn' t get picked up until it was plumbed and
backfilled and functioning. So that' s just a
7 mistake that occurred, and it' s not what we
intended nor is it what we want, but it exists and
8 it' s impossible to pick the pool out; it' s set in.
Insofar as the fences are concerned, I didn' t
9 understand that there was a problem with my
neighbor, and I read a letter now, which has
10 opened my eyes. We installed a six foot high
cedar spindled fence down most of the westerly
11 property line and a six foot high black chain link
fence in the northwest corner on the northerly
12 portion of our property line. On the north side
of our property line there is about a 25 foot, 20
13 foot buffer of existing plants, and there' s a 50
foot right of way, and my neighbor' s property in
14 that area has a tennis court, which is set back
from the road, and I believe he got a variance to
15 do that.
I have submitted photographs of the chain
16 link fence that I'm talking about along the
northern property line. It' s not visible, it' s
17 very difficult to see it. Along the westerly
property line where I have the six foot cedar
18 spindle fence, and then it joins the six foot
chain link fence, we put that in and it was
19 somewhere around August. I left in the existing
oak trees that were there. There are some that
20 are about three-quarters of an inch and they go to
about a two inch size. When those trees are in
21 leaf, I have photographs that I took just this
morning, the lower branches on them sit about a
22 foot and a half below the top of the cedar spindle
fence. My intention is to landscape the area; in
23 fact, we installed a sprinkler system and there
are some sprinkler system heads out there so I can
24 water. But two things arose. To begin with, the
plants I wanted to put in at the end of the summer
25 weren' t dug and it wasn' t prudent to plant them in
the fall . So my intention was to put some more
March 29 , 2007
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1
2 landscaping in in the spring. Although I disagree
with what I read in this letter that it should be
3 evergreens, and I am assuming that my neighbor is
referring to the cedars that grow around, right
4 across from us right on the opposite side of the
right of way, the house built there is surrounded
5 by cedars and eight or nine years ago you couldn' t
see a thing behind them, now I look at the front
6 yard because they just lose their foliage all the
way up. I intend on adding more landscaping. The
7 real concern that I have in the area, and I said
this in the application, is that this year we have
8 a herd of deer that are about 12 or 15, they are
everywhere. When we were building the pool
9 initially I put up a temporary four foot high
fence, and they just -- it didn' t matter, they
10 were in the pool area all the time while it was
under construction. I know they can jump a six
11 foot fence, but since that' s been up, there hasn' t
been a deer around, they just divert and they go
12 into the wooded area.
I'm concerned for two reasons . One I
13 don' t want a deer in my pool. I dealt with that
years ago, and not only if it dies it' s a problem,
14 but it will damage the pool liner. We have a
solar cover which is over the pool almost all the
15 time, and the deer are not the brightest animals,
they walk on everything, they' re curious . Also,
16 the smell of water might bring them in. And we
have landscaped the area pretty extensively on the
17 inside, and there' s nothing that deer won' t eat.
They eat just about everything and they eat it
18 before they figure out they don' t like it, and
when there' s a large herd, they all sample it and
19 they all decide they don' t like it.
So I understand that my property is
20 considered a front yard, just about most of it,
certainly in the area of the swimming pool . When
21 I went and installed the fencing I spoke with the
fence guy and he knew it was a front yard, and he
22 didn' t raise the question, and I certainly was
more interested in keeping the deer out not
23 recognizing that it was in violation. So
essentially I have existing trees there. I do
24 intend on landscaping under them. I know that the
letter that you have received talked about the
25 fact that there are deciduous shrubs planted on
there, it' s not quite true, I was able to pick up
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2 very cheaply last year some Caroline thododendron,
which I amassed toward the front yard driveway. I
3 like the look of the thododendron and the oak.
I'm amenable to planting other plants in front of
4 it . I didn' t want to have a wall of evergreens
just so that it hid the fence completely, but
5 that' s essentially where we are.
CHAIRMAN DINIZIO: Okay. Any other
6 questions, Michael?
BOARD MEMBER SIMON: Regarding the
7 misplacement of the swimming pool, does that
confer any benefit on you or anybody else?
8 MR. GULMI : No, it' s in an area, the pool
is a scalloped-shaped pool, so one of the areas
9 where it bumps out it' s closer than it' s supposed
to be, but no, there' s no benefit at all . In
10 fact, I was unaware of it.
BOARD MEMBER SIMON: And the other one,
11 since this is going to be held open, this hearing,
is there any possibility that you can provide some
12 further support of what you have said about the
deer and the deer habits? I know you have a six
13 foot fence now, I again ask you to take pictures
of the deer after they have jumped the fence
14 because it wouldn' t be reasonable to ask you to
cut down the fence.
15 MR. GULMI: I can take photographs of the
vegetation that I have outside the fence. I
16 planted a New England cypress last year under the
belief that deer didn' t like them, but the deer in
17 my neighborhood didn' t know that. They' re narrow
wasted about four feet up and then they branch out
18 again. They' re everywhere. They come right up
onto our back. They eat the day lilies, they eat
19 the hydrangea, they eat all the buds off the
hydrangea, much to my wife' s chagrin.
20 BOARD MEMBER SIMON: I have no reason to
doubt what you're saying. I think in other cases
21 though, it would be useful to be able to ask when
something is less plausible than yours that we
22 could ask someone if they have anything to support
what they' re saying. You can set a precedent for
23 us by giving us evidence which we don' t really
need.
24 MR. GULMI: It' s pretty much like proving
the negative. But I can take paragraphs of the
25 foliage and the plants that are inside the fence
area that are in great shape and photographs of
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2 the area outside.
BOARD MEMBER SIMON: That would be
3 relevant as a nontrivial gesture in the way of
supporting what you' re saying here.
4 MR. GULMI : Okay, I' ll do that.
CHAIRMAN DINIZIO: Ruth?
5 BOARD MEMBER OLIVA: No, I've been there.
It' s a beautiful fence. I can' t blame you for
6 wanting to keep the deer out. I have the same
problem. I'm thinking of an electric fence.
7 MR. GULMI : I'm afraid I might touch it.
BOARD MEMBER OLIVA: It' s all over, I live
8 in Orient. My husband' s coming home down the
road, there' s 15 deer on this side, there' s 15
9 deer on that side. They come, they get into my
koi pond. We have to fill up the koi pond every
10 day.
MR. GULMI: They're very prevalent in the
11 early morning. They' re everywhere.
BOARD SECY. KOWALSKI : For the fence, what
12 I' ll do, I' ll include in the legal notice, when
they put it in the next time around, I' ll include
13 the fence area.
BOARD MEMBER SIMON: Right.
14 MR. GULMI: It is on the posting.
CHAIRMAN DINIZIO: Leslie?
15 BOARD MEMBER WEISMAN: I do have just one
question. When I did the site inspection, I
16 personally observed and counted 17 deer on your
wooded and wetland property and noticed extensive
17 hoof prints all around your house because it' s
very sandy right up to the pool fence. There' s
18 also four feet off the ground of denuded
rhododendrons. But I do agree that is there any
19 way of photographing those hoof prints?
MR. GULMI: I' ll get up real early in the
20 morning and sit in my back yard with a camera.
BOARD MEMBER WEISMAN: I mean they' re
21 absolutely magnificent. I mean, that' s their
terrain, we build in a habitat that we shouldn' t
22 be building in, but everybody' s got that problem.
One question though, I think I heard you say you
23 were not aware when .you built the fence that you
would need a variance for a six foot high fence?
24 MR. GULMI : Yes, I guess I wasn' t focusing
on the fact that a six foot high fence would need
25 a variance. I mean, now that it' s there, there
was a disapproval I understand that it' s supposed
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2 to be. I guess what confused me most in my
neighborhood, there are six foot high fences but
3 what I observe now, my wife pointed this out, they
all seem to be at the same plain that the house
4 is . The front lawns are there and there are
fences running off the house and down the property
5 line.
BOARD MEMBER WEISMAN: So they' re in the
6 side yard.
MR. GULMI: I guess that' s what you would
7 call it. You walk out of the house, the garage,
then there' s a fence to the end of the property
8 and down, so I never thought much about it.
BOARD MEMBER WEISMAN: And the individual
9 who built the fence, who installed the fences for
you never told you that your right of way was
10 considered a front yard?
MR. GULMI : No, we didn' t have any
11 discussion. We knew it was a front yard. He sold
his business, so it was interesting. I paid him
12 for part of the job. The guy who finished the
job, and I'm very happy with the way the fence is,
13 but it never came up. No one said to me, this is
higher than it should be.
14 BOARD MEMBER WEISMAN: I think we need
fence education for local builders . They know,
15 they just aren' t advising you. They claim they
don' t know.
16 CHAIRMAN DINIZIO: As I contractor, I
prefer to get the job, quite honestly. We' ll talk
17 about that later on. Jerry, do you have anything?
BOARD MEMBER GOEHRINGER: Not at this
18 time.
CHAIRMAN DINIZIO: Okay, so you' re aware
19 that we did get a letter from your neighbor.
MR. GULMI : I got a copy of it from the
20 office.
CHAIRMAN DINIZIO: We normally grant at
21 least one recess.
MR. GULMI: I would need to be here the
22 next time.
CHAIRMAN DINIZIO: It would be to your
23 advantage to be here.
MS . BRAVER: I just want to say one thing,
24 he built there long after we have been there, and
he never once opposed us about anything that was
25 going on during any of this time, never asked a
question, never brought anything up where if it
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2 was possible to fix it to his satisfaction, if
that' s what we were going to do where it could
3 have been addressed, never said a word. He looks
with binoculars.
4 CHAIRMAN DINIZIO: Well, I' ll tell you,
ma' am, I've been on this Board for about 18 years,
5 and I say to anybody who wants to find out who
their friends are, apply to the ZBA for a
6 variance. And we have had people who come in here
and apply for a variance and on a piece of
7 property that the person that sold them the piece
of property that came in here and was against the
8 variance. So it happens and you listen to what
they have to say, and if it makes some sense -- it
9 will work out. I would like to entertain a motion
that we keep the hearing open until April 26th at
10 11 : 00 a.m.
(See minutes for resolution. )
11 CHAIRMAN DINIZIO: I'd like to make a
motion to recess for lunch and reconvene at 1 : 00 .
12 (See minutes for resolution. )
---------------------------------------------- ---
13 CHAIRMAN DINIZIO: The next hearing is
for Vicki Haupt. I think that' s your application,
14 Ruth.
BOARD MEMBER OLIVA: It is and we would
15 appreciate it if Pat and Mike or both would get up
and to explain the notice of disapproval . I'm not
16 going to read the whole thing because we've all
been through it, we' re aware of it. Because we' re
17 not too sure why we' re here.
MS. CONKLIN Okay. Basically when I
18 reviewed the permit, I looked at the history of
the lot and what I found was in the 160s a
19 so-called single-family dwelling was erected on
the site -legally with an apartment. It said
20 "shell" on the application. Single-family
dwelling, it ended up being two shells . One which
21 has kitchen and habitable space as far as we can
see. No other permit has been taken out since the
22 ' 60s . Now, the proposal was to put in a master
suite, replace windows along the walls, patchwork
23 where needed, exterior patchwork, a complete
double bathroom and master bedroom, habitable
24 suite.
Heretofore I didn' t think there was
25 anything habitable about the thing and now it' s
going to be very habitable so therefore --
March 29 , 2007
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2 ASST. TOWN ATTY. CORCORAN: This is the
second structure.
3 MS . CONKLIN: This is the second structure
I'm describing in the data that we have, which is
4 very limited.
BOARD MEMBER OLIVA: But why would you
5 call that habitable on the top in the second floor
there, the second structure, because there' s no
6 kitchen there, there' s just the bedroom and a
bath.
7 MS . CONKLIN: There' s no kitchen but the
history on the lot shows a mere shell of a
8 structure, and then in reality what they want to
do is put in a lot of new windows, doorway,
9 patchwork exterior, and renovate the interior to
include a master suite where it will become
10 habitable where as far as I could tell from the
evidence, it was not habitable before then.
11 BOARD MEMBER OLIVA: Isn' t this more
reconstruction rather than new? Mike, maybe you
12 can help us out.
MS . CONKLIN: I think it' s an alteration.
13 MS . CONKLIN: They are two independent
structures and it stands alone at the top of an
14 open staircase, so-called very --
BOARD MEMBER OLIVA: Very unsafe.
15 MS . CONKLIN: Very rustic and unheated
space. Now it' s going to become very habitable
16 with the amount of work that' s being done to
it . So that' s how I viewed it as an alteration
17 fitting into that section of the code. It would
need to be looked at by you guys in my opinion.
18 CHAIRMAN DINIZIO: Do you mind if I just
ask this one question, this is what' s been
19 bothering me.
BOARD MEMBER OLIVA: Sure.
20 CHAIRMAN DINIZIO: I am wondering why it
didn' t meet say the Walz decision. In other
21 words, an increase in the degree of nonconformity.
MS . CONKLIN: Because I didn' t see it
22 going up or out in the dimensions of the
footprint. Even though it' s only 11 feet from the
23 property line, which is nonconforming for its size
lot, but I didn' t see it as that. I saw it
24 fitting that other little piece of the code that I
quoted, and I hope I quoted it correctly. I don' t
25 know that I absolutely did.
ASST. TOWN ATTY. CORCORAN: It looks like
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2 the notice of disapproval concerns use not going
up or out like Walz talks about, but are we
3 turning this into some new use?
CHAIRMAN DINIZIO: Well, just on that, I
4 know that what the notice of disapproval says but
that' s probably not my confusion, but my confusion
5 is that they have a nonconforming use there now.
BOARD MEMBER OLIVA: Not exactly.
6 MS . CONKLIN: The problem is this CO is so
ambiguous it doesn' t really tell us what was going
7 on out there.
CHAIRMAN DINIZIO: Right.
8 MS . CONKLIN: Just single-family dwelling,
just two sections, shell, just a shell and then
9 what it' s going to become to me is just an
alteration to that alteration of that.
10 BOARD MEMBER OLIVA: The only new part,
Pat, Mr. Williamson can comment, is just that new
11 little patio and stairs on that I think it would
be the west side of the building, but that' s the
12 only other new thing. But otherwise it' s just
redoing and restructuring the windows, the floors,
13 hopefully those stairs . A lot of it to me is
safety issues.
14 MS. CONKLIN: Those were your concerns?
BOARD MEMBER OLIVA: Yes .
15 ASST. TOWN ATTY. CORCORAN: What if we had
a more typical situation where there was a main
16 house, and to use a difficult word, an accessory
structure, whatever it was, garage-type thing, and
17 somebody wanted to come into that accessory
structure and put into that they' re putting into
18 this shell now, a bathroom, jacuzzi and all that
stuff; would that be disapproved?
19 MS. CONKLIN: I assume, yeah, you would
need --
20 MR. VERITY: That' s basically the way
we' re viewing that, Kieran.
21 ASST. TOWN ATTY. CORCORAN: That would be
disapproved because you' re turning that accessory
22 structure into habitable space?
MR. VERITY: A nonpermitted use, today' s
23 standard would not allow you to build that
structure. Actually, it' s even questionable at
24 the time, but we' re not going back.
ASST. TOWN ATTY. CORCORAN: Now, to ask
25 another question, if this second structure, this
shell, if it was clear that there was bedroom
March 29, 2007
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1
2 facilities, area, sleeping area or some habitable
area that was previously approved, then they
3 probably wouldn' t need a variance, right? Because
they would be sort of updating and remodeling that
4 prior use.
MR. VERITY: As long as they' re not
5 expanding in any way, shape or form. If they were
going one for one into that effect, we wouldn' t
6 have a problem with that at all .
ASST. TOWN ATTY. CORCORAN: I think what
7 this Board needs to decide is whether there was
enough in the record to bless that prior use in
8 the structure. If so, they might not even need a
variance; if not, they will need some variance to
9 bless that second use.
BOARD MEMBER GOEHRINGER: Let me just say
10 this, by severing everything out of the western
portion of it, and having a plain room as it
11 exists when we inspected it, one really -- I mean,
there can be numerous affidavits done, but it' s
12 just a room now. That' s all it is. It was my
suggestion at the hearing to merge the two pieces
13 together, get rid of the stairwell.
BOARD MEMBER OLIVA: Make a hallway.
14 BOARD MEMBER GOEHRINGER: Make it one
unit, I don' t care if it' s heated or unheated, as
15 you know today, Mike and Pat, all you've got to do
is insulate it, and you can have an alternate type
16 of heating system in it. Heating has no bearing
on the situation at all . It would not make sense
17 to me to rebuild walls without putting insulation
in any way. That' s just a thought regardless of
18 their situation. My suggestion to the architect
who was present, who by the way is a very nice man
19 in the back, I said put them together. They have
got to be put together. I don' t mean physically
20 move them together, but put some sort of a unit
together to make them one.
21 ASST. TOWN ATTY. CORCORAN: Wouldn' t you
have then a new structure being built near the
22 natural protective feature and you would need a
variance for that and to get past the LWRP for
23 that as well?
CHAIRMAN DINIZIO: Right. Our remedy,
24 which is what we started with, would need a
variance.
25 MR. VERITY: There' s a question of a side
yard variance for that too.
March 29 , 2007
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2 CHAIRMAN DINIZIO: When we said join the
two buildings, that would be Walz, right?
3 MS . CONKLIN: Right, because you' re 11
feet from the lot line.
4 BOARD MEMBER GOEHRINGER: Do Walz because
that' s the way to do it. It' s still in the
5 conventional floor plan regardless .
CHAIRMAN DINIZIO: Quite honestly, it
6 hasn' t met that criteria because in order to put
new windows in you don' t have to change the
7 structure of that building in any way.
BOARD MEMBER OLIVA: No.
8 CHAIRMAN DINIZIO: Well, I'm asking the
Building Inspector.
9 MR. VERITY: If they' re taking the same
size windows out and putting the same size windows
10 back.
BOARD MEMBER WEISMAN: But they are
11 changing some of the windows. The stair is in no
way to code.
12 MR. VERITY: It was questionable at the
time it was written, but like I said, we' re not
13 going to go back on that. There was a CO issued,
but in my review of the code, new and old, I don' t
14 see how it was really allowed to be honest with
you.
15 CHAIRMAN DINIZIO: You' re saying it has a
CO?
16 MR. VERITY: That' s correct.
CHAIRMAN DINIZIO: And the CO is what it
17 is .
MR. VERITY: That' s correct. And our view
18 now is if you want to alter the main building,
where the kitchen area is, the main dwelling area,
19 have at it, but you can' t alter the nonconforming
section.
20 BOARD MEMBER WEISMAN: How in the world
could that possibly be used then?
21 MR. VERITY: If they want to repair that
as is, keep it as is .
22 BOARD MEMBER GOEHRINGER: But we don' t
know what the as is was.
23 BOARD MEMBER WEISMAN: I suspect it was
sleeping quarters .
24 MR. VERITY: It' s basically an open room,
that' s as much as we have.
25 BOARD MEMBER OLIVA: It was used as
sleeping quarters, the second shell .
March 29, 2007
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2 MR. VERITY: We have no guarantee of
that.
3 BOARD MEMBER WEISMAN: I think the goal
here is to figure out how to proceed. We can' t
4 give them setback variances when that' s not before
US .
5 MR. VERITY: You have two options . It' s
either the use or by connecting it by condition
6 space then it would be --
BOARD MEMBER WEISMAN: Walz .
7 MR. VERITY: That' s correct. And the
possibility of a side yard setback as well . Right
8 now the use according to the CO is a single-family
dwelling. We' re going to consider it; it' s
9 technically an accessory building of some sort.
BOARD SECY. KOWALSKI : Like a bunk house.
10 MR. VERITY: Exactly.
ASST. TOWN ATTY. CORCORAN: But the CO
11 says single-family dwelling in two parts . The
second part is really blessed as a dwelling.
12 MR. VERITY: Yeah, but if it' s done
incorrectly, I feel as per the code it was done
13 incorrectly, and if that' s the case I don' t think
we can keep blessing that. At some point in time
14 if you want to do something with it, you' re going
to come back to us, you have to address the issue.
15 BOARD MEMBER GOEHRINGER: I haven' t
addressed this, but I'm going to address it right
16 now. And this is the most interesting portion of
this because this is the first one that has ever
17 come before us in the 27 years I've been here.
But over the years, people built -- this happens
18 to be a relatively small lot in reference to the
size of some of the lots in Mattituck, take the
19 ones down on Ruth Road, they were five acre
parcels, and what people actually built were tree
20 houses, okay. I'm talking about 600, 800 foot
tree houses and they actually lived and habitated
21 in those tree houses. This is the first one that
I saw that had a CO on it. And all of those tree
22 houses have subsequently been knocked down, and
single-family dwellings have been built on them.
23 Some of the properties have been subdivided, some
of them have not. But the ones that exist
24 presently on Ruth Road, from Xena Road out, had
these places on them, and as I said, every one has
25 been destroyed since. This is the only one that I
have ever seen a CO on.
March 29, 2007
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2 MS . CONKLIN: Was it in two parts, though?
BOARD MEMBER GOEHRINGER: Some were in two
3 parts, some were multistory, it was absolutely
amazing. And one of them belonged to a U.S .
4 Congressman where he wrote most of his prose
before he spoke before Congress.
5 BOARD SECY. KOWALSKI : I was just
wondering if it' s possible, 30 years past, if it
6 was habitable back in the 160s, suppose they had a
bunk in there and had temporary sleeping quarters,
7 30 years or 40 years have passed, you had a house
in that situation and you never upgraded it, you
8 never altered it, you never maintained it, after
40 years, wouldn' t that house become nonhabitable
9 because of safety and neglect?
MR. VERITY: Not by town code but by state
10 code, there' s a possibility, yes .
CHAIRMAN DINIZIO: You' re not making that
11 decision?
MR. VERITY: No.
12 BOARD SECY. KOWALSKI : Just in general .
CHAIRMAN DINIZIO: So, can you sum up in a
13 nutshell what you' re asking us to do?
MR. VERITY: Certify the use basically.
14 BOARD MEMBER OLIVA: As habitable space?
MR. VERITY: Yes, that' s correct. And
15 that will allow them to continue and there' s two
methods to do that.
16 CHAIRMAN DINIZIO: You want us to certify
the use. Do we need to put conditions on?
17 MS. CONKLIN: It' s up to you.
CHAIRMAN DINIZIO: Say, if we join these
18 two then we need to grant a variance on that. If
we just certify the use, as is right now, they can
19 work within the confines of the building permit,
correct?
20 MS . CONKLIN: That' s an option.
CHAIRMAN DINIZIO: They may have to come
21 because they' re going to destroy the porch. If
they destroy the porch and redo it, what does that
22 do? Can they rebuild that porch in-place/in-kind?
BOARD MEMBER OLIVA: Or even the stairs .
23 CHAIRMAN DINIZIO: That' s what I'm talking
about, the stairs?
24 MR. VERITY: Replace that, but what about
the building that they' re attaching to, what about
25 the building? Where are we at with the building?
CHAIRMAN DINIZIO: If the use is a use,
March 29 , 2007
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2 and I don' t think we're going to delve much into
one or the other, we' re just going to --
3 MR. VERITY: Yes, I would say
in-place/in-kind or condition space, that would be
4 the only two options.
CHAIRMAN DINIZIO: Even though the
5 stairway is not a stairway, it would not be
allowed today, you would allow them to disconnect
6 that and put a stairway in the same narrowness of
top step or would it have to be --
7 BOARD MEMBER OLIVA: Bring it up to code.
MR. VERITY: As long as it was state code
8 compliant.
CHAIRMAN DINIZIO: So it would have to
9 meet today' s code for the stairway?
MR. VERITY: That' s correct.
10 CHAIRMAN DINIZIO: The treads would have
to be eight inches.
11 MR. VERITY: That' s correct.
CHAIRMAN DINIZIO: Does that change now
12 the building?
MS. CONKLIN: Not the building.
13 MR. VERITY: No, I would say you' re
basically giving your blessing of that as a
14 single-family dwelling not as an accessory
building.
15 ASST. TOWN ATTY. CORCORAN: You would also
have to give a variance to the bluff.
16 BOARD MEMBER OLIVA: But they would have
to give us --
17 ASST. TOWN. ATTY. CORCORAN: If they did
the stairs, if that was a condition, then you
18 would have to get LWRP approval and all that.
CHAIRMAN DINIZIO: If we just today say
19 okay, we' re going to agree with the building
inspector, this is a use that cannot be altered
20 and all that stuff, and basically what we've said
is, okay, they can do basically what they applied
21 for as long as they don' t exceed, make it bigger.
MR. VERITY: Yes .
22 ASST. TOWN ATTY. CORCORAN: It' s not
dissimilar from cases where you have old lots that
23 have two houses on them, and we have learned
through the courts that where they have two houses
24 on them, you can give them an area variance to
alter the second house. You know they' re not
25 supposed to increase that degree of nonconformity,
but you can let them. If you decide in this case
March 29 , 2007
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2 that that second structure is a dwelling or part
of that first dwelling or has that use as a
3 dwelling, you can allow them, give them a variance
to allow them to do what they' re asking for right
4 now.
BOARD MEMBER GOEHRINGER: What it is is a
5 tree house without a tree.
CHAIRMAN DINIZIO: One more question then,
6 what if we say no, what is their recourse?
MR. VERITY: Not to allow the rebuild or
7 no to us and reverse our decision?
CHAIRMAN DINIZIO: No, I don' t think it
8 meets today' s -- we' re not going to give you a use
variance.
9 MR. VERITY: Then your other option would
be -- I'm pretty sure it' s landward of, Kieran,
10 you mentioned something in reference to the bluff,
any construction attaching that would be landward
11 of -- they could attach it by conditioned space
then there' s no question, then there' s a question
12 whether or not it was constructed at the time to
the proper setback. If it was in the 160s
13 constructed to the proper setback, then there
wouldn' t be a side yard setback.
14 CHAIRMAN DINIZIO: We would just be
issuing a building permit?
15 MR. VERITY: That' s correct.
BOARD MEMBER WEISMAN: In other words,
16 that preexisting nonconforming setback would be
the precedent?
17 MR. VERITY: That' s correct.
BOARD MEMBER WEISMAN: And if they rebuilt
18 it in-kind/in-place, made it a permanent
year-round, clearly single residence --
19 MR. VERITY: They' re making it better so
that everything we talked about is going away.
20 That' s basically how the code reads in my eyes .
They want stuff like that to go away.
21 CHAIRMAN DINIZIO: I'm confused. Are you
saying that if they tear that building down and
22 build in the same footprint --
BOARD MEMBER OLIVA: No, no.
23 MR. VERITY: No, any tear-down it' s done,
I was talking about the connection.
24 CHAIRMAN DINIZIO: Oh, talking about if
they go landward of the bluff on the house.
25 ASST. TOWN ATTY. CORCORAN: He' s
correcting what I said because if it' s behind the
March 29 , 2007
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2 first structure, it actually wouldn' t need a
variance.
3 CHAIRMAN DINIZIO: We have alternatives .
MR. VERITY: Yes, there' s a couple
4 alternatives .
CHAIRMAN DINIZIO: That' s all I have.
5 Anybody else have any questions? Maybe somebody
in the audience would like to comment?
6 CHAIRMAN DINIZIO: Sir, would you like to
come up?
7 MR. WILLIAMSON: I am Nigel Robert
Williamson, Architect, representing Miss Vicki
8 Haupt. I just want to disagree with Miss Conklin
on one thing and that I have kind of an issue
9 with -- and it' s been thrown around -- is the
issue of the wording of "shell" because that
10 connotation is unfinished, and we spoke about two
shells . I mean there was a CO issued for the two
11 sections of the house, and I just want to say that
I'm sure someone inspected it to say that it was
12 habitable, and that it was finished as opposed
mentioning shell . I just wanted to say that. I
13 know there' s been the issue about Mr. Goehringer
has mentioned about tree houses, and I know
14 there' s been the point of the connection between
the two, and I did mention to my client the next
15 time and she was distraught. And if I may give
you a look at this, it' s just a larger picture of
16 the blow-up I gave you. I mean, the picture is
basically showing you what it is. It' s a tree
17 house, and if there' s any way without this
connection issue, it would be greatly appreciated.
18 Because she' s trying to keep the integrity of it,
and I know that Miss Weisman the last time had
19 asked me if the structures were sound, and I said
I wasn' t going to hang myself, and I did mention
20 they were reasonably sound and there was the issue
about whether this was going to turn into whatever
21 it could be if we discovered rotten wood or
whatever. And I truly believe that that' s how my
22 client, her intent is to have it right now the way
it is with these alterations and keep it basically
23 as a tree house. And it may not be what you and I
would love, but that' s what she has gotten in her
24 head about this Japanese tree house.
BOARD MEMBER GOEHRINGER: Just as we said,
25 Mr. Williamson, or I have said -- I can' t say we
have said -- there' s an issue of health, safety
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1
2 and welfare here. My expertise over the years has
been in health, safety and welfare both from a
3 volunteer fire department situation to a situation
of an ex-captain of the rescue squad and apart
4 from all the other capacities I have held in
Suffolk County at the time and still do, this does
5 not meet anything, okay. It is very simply a
room. It' s nothing more than a sitting room or a
6 reading room. To put a bed in there to habitate
in that unit, to sleep there, violates anything
7 and everything I have ever seen on the 27 years I
have been on this Board. To connect those in the
8 most primitive type of way is the easiest thing in
the world and the best thing in the world
9 regardless of when you go up there, what time of
year, if they are heated or unheated, it can be to
10 a common lobby area, it can be simply two units
together in that situation; we have done it
11 before; we have asked for it before, and it' s been
done before, and I'm sure you have the expertise
12 to do it. So I think you just need to mention
that to your client. No one is trying to take
13 anything away from the beauty of this . I don' t
care if it' s all glass to be honest with you. We
14 just did a house couple years ago in Fishers
Island. It' s 27, 000 square feet. It' s all glass .
15 You can see from one side to the other. For the
director of the Met in the city, probably one of
16 the most beautiful pieces of construction I have
ever seen in my life, but that' s the issue. The
17 issue is we need to update it if you' re going to
use it as habitable space.
18 BOARD MEMBER OLIVA: I agree with Jerry,
especially as far as those stairs it should be
19 redone, it should be enclosed, they should be made
safe. The bottom stairs should somehow get into
20 the lower building so it' s a safe ingress and
egress because to me this is not safe at all . The
21 big problem I have -- I don' t have any problem
with your fixing the windows and that, that' s all
22 interior things, the only exterior thing is that
little patio, which to me is not a big deal . That
23 to me is such an unsafe situation, the stairs,
it' s more of a safety issue than anything else.
24 Nigel, I know you've been very cooperative, and
you want to do the best you can.
25 MR. WILLIAMSON: It' s not about
cooperation, we all want to do the best we can.
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2 BOARD MEMBER OLIVA: And you have to deal
with your client too.
3 MR. WILLIAMSON: It' s the best we can,
it' s all we're doing.
4 BOARD MEMBER WEISMAN: I think the task
before you is to demonstrate to your client, as I
5 know you' re capable of doing, how aesthetically
you can to code bring these two structures into
6 one structure, the legal definition of one
dwelling, without radically transforming the sense
7 of openness and stilt-like quality and rather
ramshackle kind of step down. It probably will
8 cost a bit more in order to do that, but she will
in the end have a very clearly legal to code
9 habitable space that is then definable in a way
that the code will recognize. So I suspect you
10 don' t have to really radically transform the way
it appears in order to do that.
11 MR. WILLIAMSON: Okay.
CHAIRMAN DINIZIO: Michael?
12 BOARD MEMBER SIMON: I have no questions .
CHAIRMAN DINIZIO: Okay.
13 MR. WILLIAMSON: I want to just give the
Board one piece of paper, please, that Miss Oliva
14 had asked for last time, the square footprint of
the structures.
15 BOARD MEMBER OLIVA: Great. Thank you so
much.
16 CHAIRMAN DINIZIO: Does anybody have any
questions on this? I have one more question for
17 the Building Inspector, if I could. He heard what
Mr. Williamson had to say, he heard what we had to
18 say, they enclose the stairs from one building to
the other, what does that do? Does that make it
19 more nonconforming; do you know what I mean? They
say fill in that gap, they're going to make it one
20 house basically.
MS . CONKLIN: Where the attachment would
21 go I don' t think would affect setback. We' d have
to do some research and see what side yard setback
22 was in the ' 60s and confirm what we, as we
discussed before, what was legal then and if it
23 was, if that line doesn' t change and Walz isn' t
affected then really it shouldn' t affect the code.
24 BOARD MEMBER OLIVA: Wouldn' t that be like
having a breezeway?
25 CHAIRMAN DINIZIO: How long of a breezeway
are we talking about, and how does that go into
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2 the code?
MR. VERITY: Breezeway wouldn' t be
3 acceptable more than 80 feet.
CHAIRMAN DINIZIO: It' s going to well
4 exceed that.
MS . CONKLIN: It will have walls on either
5 side, that would be a given, not a breezeway. We
would want something structural . I meant
6 corridor.
BOARD MEMBER WEISMAN: It could be a
7 multilevel step-down corridor, but it will be
considered an internal corridor.
8 CHAIRMAN DINIZIO: Mike?
MR. VERITY: It would be working towards
9 conformance, Jimmy, but you then broke that down a
little more, you said setback. A setback is
10 questionably whether you would be making that a
nonconforming setback, but in general the entire
11 property would be becoming more conforming which
we are all looking to do that.
12 CHAIRMAN DINIZIO: I'm just concerned
about seeing this application again, quite
13 honestly, or being the cause of them having to
wait another three months because we did something
14 as a condition that makes them have to come back
to us .
15 MR. VERITY: What type of condition?
CHAIRMAN DINIZIO: Just the stairwell, I
16 just want to be clear on the corridor leading to
these two buildings. Once you look at that on a
17 plan, say if it' s not a breezeway, does it meet
the building codes for square footage of a room or
18 is it now just a long hallway?
MR. VERITY: It' s a long hallway; it' s
19 conditioned space.
BOARD MEMBER OLIVA: An interior corridor.
20 MR. VERITY: As long as it meets the three
foot wide requirements as per state code, it
21 wouldn' t be a problem.
CHAIRMAN DINIZIO: So, if I had a house
22 and I had a garage and I wanted to build between
those two houses, that would be acceptable?
23 MR. VERITY: As long as it was conditioned
space.
24 CHAIRMAN DINIZIO: Right. If the garage
met the principal setback?
25 MS . CONKLIN: It would be fine.
CHAIRMAN DINIZIO: Okay. Thank you very
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2 much.
BOARD MEMBER OLIVA: Thank you.
3 MR. WILLIAMSON: Just one more before
Mr. Verity goes.
4 CHAIRMAN DINIZIO: Hold on, Mike.
MR. WILLIAMSON: When you say "conditioned
5 space, " Michael, you were talking heated or
enclosed?
6 MR. VERITY: Conditioned space is normally
heated area as per state code.
7 MR. WILLIAMSON: So you' re looking for
conditioned space with heat?
8 MR. VERITY: Yes.
CHAIRMAN DINIZIO: So you would be looking
9 for that?
MR. VERITY: Yes .
10 MR. WILLIAMSON: I just have one more
other issue with that. That this may snowball way
11 out of disbelief that if it' s now conditioned
space, then we're dealing with engineer code,
12 correct, New York State engineer code?
MR. VERITY: That' s correct.
13 MR. WILLIAMSON: Is that New York State
engineer code only conditioned on this connection,
14 Michael, or you' re looking for the whole building
to be?
15 MR. VERITY: Obviously it would be just
any new additions or alterations to the building
16 would have to be the entire dwelling unit, or
structures would not be able to --
17 MR. WILLIAMSON: Okay, but you' re saying
any alterations, I mean, the fact that we' re
18 removing the windows and trying to put it in
somewhere else is an alteration which would mean
19 that the upper structure and lower structure would
have to be heated then by definition of altered?
20 BOARD MEMBER OLIVA: No.
MR. VERITY: The connection would have to
21 be engineer code compliant and depending on what
you do to the other part, the other structures .
22 MR. WILLIAMSON: But you' re saying any
alterations to the other structure, correct, would
23 bring us back to the engineer?
MR. VERITY: That' s correct.
24 MR. WILLIAMSON: Okay.
CHAIRMAN DINIZIO: It may be something you
25 will have to deal with.
MR. WILLIAMSON: Right. I just want to be
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2 clear that I went to a different ballgame when I
went to engineer code level .
3 BOARD MEMBER WEISMAN: Didn' t you
anticipate leaving it seasonal?
4 MR. WILLIAMSON: Zero heat, correct.
BOARD MEMBER WEISMAN: So it' s important
5 to understand that the proposed use is in a
seasonal dwelling, which, of course, doesn' t
6 include any kind of heat. Now you could solar if
you want to get crazy in this little piece, but
7 this is a very anomalous situation where the
actual dwelling becomes one principal dwelling
8 instead of a dwelling with a flimsily attached
accessory habitable structure. It' s falling
9 between all the definitions that we have in the
code, not one single thing about it is clear. So
10 if you go and make them attached, then the new
attachment has to be heated whereas the pieces of
11 the dwelling on either end of that condition are
not.
12 MR. WILLIAMSON: No, that' s incorrect,
ma' am.
13 BOARD MEMBER WEISMAN: Unless it' s
altered, but your alterations are including
14 essentially replacement of windows; are those
considered alterations?
15 MR. VERITY: Yes.
BOARD MEMBER WEISMAN: So then you' re
16 talking about year-round habitable structure.
MR. WILLIAMSON: Correct. I just wanted
17 to be sure.
BOARD MEMBER WEISMAN: But I want the
18 record to also clarify that so we don' t have to go
back and revisit. So now you' re talking about
19 changing the whole thing into one structure that
is heated throughout.
20 MR. WILLIAMSON: Correct. Let me just add
that if it' s falling through all the cracks, why
21 did it have to be me?
BOARD MEMBER OLIVA: But you've done such
22 a good job, Nigel.
CHAIRMAN DINIZIO: Okay. Does anybody
23 else wish to say anything about this application
for or against? I want to thank the Building
24 Inspector and Pat for coming in today. We
appreciate that.
25 MR. VERITY: Any time.
CHAIRMAN DINIZIO: I entertain a motion to
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2 close this hearing.
(See minutes for resolution. )
3 - - ------------------------------------------- ----
CHAIRMAN DINIZIO: Our next hearing is
4 John and Patrice Keitt. That' s yours, Ruth.
BOARD MEMBER OLIVA: This is a request for
5 a variance under Section 280-15, 280-116B and
280-124, based on the Building Inspector' s January
6 11, 2007 notice of disapproval concerning an
application for a building permit for an as-built
7 shed, new porch construction after removal of a
screen porch, and a new addition to dwelling. The
8 reasons stated in the disapproval are: (A)
decking construction is shown with zero setback
9 from the bulkhead; (B) the as-built screened porch
is less than 75 feet from the bulkhead; (C) the
10 rear yard setback is less than 50 feet; (D) the
as-built accessory shed does not meet the required
11 five foot required minimum setback under ZBA
Number 3229 . (Note: Variance relief is not
12 requested for the trellis structure. ) Location of
property: 280 Basin Road, Southold.
13 Now, you' re going to have to walk me
through this whole thing from where the bulkhead
14 was previously to where the bulkhead is now
because when I was down there the other day, it
15 seems to me the bulkhead is far more
landward -- not far, but more landward than it was
16 before when I was down there.
MS . DOTY: When you were down there before
17 I believe there were two retaining walls and one
bulkhead, and now there' s just one bulkhead and
18 one retaining wall . On the site plan that
Mr. Samuels did, and he' s here to talk about it,
19 it reflects where the current bulkhead is as does
the survey, and it also reflects where the
20 retaining wall is. The retaining wall as it
exists is landward of the middle retaining wall .
21 You remember when you were there in September, I
believe it was, you saw those collapsing retaining
22 walls and bulkheading. And the distances on that
plan are accurate. So I'm not sure what you' re
23 asking -- and to start out, my name is Debra Doty,
I represent John and Patrice Keitt. Mr. Keitt is
24 here and Tom Samuels is here.
BOARD MEMBER OLIVA: I took the liberty of
25 going to the Trustees because it was so falling
into the drink, so to speak, when I was down there
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2 in September. I was really worried for these
people. A bulkhead had been built say in the
3 early ' 90s . Well, this is only a little over 10
years later and the thing is falling down again.
4 MS. DOTY: The prior bulkhead?
BOARD MEMBER OLIVA: Yes . I went to look
5 at the Trustees for the permit for the previous
owner, and to have that degree of erosion toe out
6 under that bulkhead to make so much of that land
kind of sink, you know, I know you had a very good
7 contractor doing that, but I'm just worried in
another 10, 15 years is it going to start doing
8 the same thing that their house is going to end up
being right on their bulkhead; is there enough
9 protection there?
MS . DOTY: The bulkhead is actually a
10 little further away from the house than it was
previously, and it' s about half a foot, maybe a
11 foot, and I can assure you that they intend to
keep that bulkhead maintained so that it doesn' t
12 collapse. Part of this problem was that this
planning started in 2004 .
13 BOARD MEMBER OLIVA: That would have made
it even closer.
14 MS . DOTY: And it takes a while to get
through Trustees, and DEC, and Army Corps .
15 BOARD MEMBER OLIVA: I know, I'm quite
aware.
16 MS. DOTY: And we actually started
discussing this last summer to come to the Board
17 for the variance, and in fact, I had the
application virtually done in August, then I
18 submitted it in September, and we are at the
position where the bulkheading had to be done,
19 when I say bulkheading, I'm talking about the
bulkhead and the retaining wall. It absolutely
20 had to be done. And the Board was reluctant to
put it on for a hearing for the variances until
21 the bulkheading was complete. So, now we have a
mess . We have land that is eroding because it' s
22 not covered with any kind of lawn, and Mr. Keitt
was just saying to me he' s very concerned about
23 how long we're going to have to wait to replace
the pool because it doesn' t make sense, let me put
24 it this way, to seed the lawn, and then have it
_ all ripped up again to replace the pool and the
25 deck. Now, if you have been down there
recently --
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2 BOARD MEMBER OLIVA: I was just down
there.
3 MS. DOTY: Okay. What the contractor did
was he picked up the old deck, moved it away, did
4 his work on the bulkhead and the retaining wall
and then put the deck down again so that you could
5 see where it had been originally. We acknowledge
that part of it was done in the ' 80s without a
6 permit. It went a little bit beyond the permit.
Much like the shed that went a little bit too
7 close to the property line.
BOARD MEMBER OLIVA: Porch.
8 MS . DOTY: And the screen porch.
BOARD MEMBER OLIVA: I just want to make
9 sure, Debra, that they spent so much money doing
this, I don' t want to have to see him lose any of
10 this in another 10 or 15 years .
MS. DOTY: I don' t believe they' re going
11 to allow it to deteriorate again.
BOARD MEMBER OLIVA: You know, you' re very
12 nice people, it' s a lovely area, you have a lovely
home, and it' s not your fault that the whole thing
13 was sliding into the drink in the first place. I
just want to make sure that you' re not going to
14 have the same problem in another few years again.
MR. KEITT: We agree 100 percent on
15 that. And what we were advised when we had this
looked at, and by the first contractor and then
16 Chesterfields again --
BOARD MEMBER OLIVA: I know he' s a good
17 contractor.
MR. KEITT: -- was that there was no
18 backing back from the bulkheading to the retaining
walls; in fact, they were kind of connected. So
19 when the retaining walls started down, it pulled
everything off. Plus they found that when they
20 took the bulkhead up, there was very little below
the surface, we've gone down 20 feet. We've got
21 helical anchors .
BOARD MEMBER OLIVA: I feel better.
22 MR. KEITT: So do I. But we spent a lot
more money to make sure and Chesterfield said
23 hopefully we're not going to have to deal with
this again even if we live there until we die.
24 BOARD MEMBER OLIVA: I hope so, because
you had told me because originally 25 years ago it
25 went, the land went much further out in the bay
and your neighbor to the right there is up much
March 29, 2007
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2 higher than you, and I notice his slope near you
is starting to come down.
3 MR. KEITT: We're going to be fixing all
that.
4 BOARD MEMBER OLIVA: All right. My next
question is the old pool was vinyl; now you want
5 to put in a gunite pool? Just for the sake of
everything, for your safety and my safety for
6 seeing a pool I would prefer seeing a pool
approximately the same size or smaller than what
7 you' re proposing, because you' re having gunite
that has weight on it and the water, I know it' s
8 not as heavy as soil but gunite is heavy.
MS. DOTY: But my understanding is that
9 the water and pool apparatus pretty much equal the
weight of the soil. So you' re not really
10 increasing the impact behind the new retaining
wall . It' s going to be a shallower pool .
11 MR. KEITT: It' s only going down four and
a half feet, it' s not going down eight feet.
12 BOARD MEMBER OLIVA: Okay, that makes me
feel better too.
13 MS. DOTY: Keep asking.
BOARD MEMBER OLIVA: Then what type of
14 docking are you going to be using around the pool?
MS. DOTY: Mahogany, cedar.
15 BOARD MEMBER OLIVA: Or stone?
MS . DOTY: Mahogany decking. The Trustees
16 application says stone. I have been to the
Trustees Department. I showed them the plan, and
17 they said come in after you have been to the ZBA
and have a determination from the ZBA and we' ll
18 put it on as an amended permit. They saw no
problem with what we were proposing. We were
19 planning on mahogany decking around the pool, and
the rest of the decking to be mahogany as well .
20 BOARD MEMBER OLIVA: That' s just going to
be laying on top of sand or how; what is the
21 drainage going to be?
MS . DOTY: Well, there' s dirt underneath
22 it and it' s going to be standard drainage
permeable.
23 BOARD MEMBER OLIVA: Okay. I think.
MS . DOTY: If I could note, originally the
24 plan with Trustees did have a stone patio.
Suffolk County Soil and Water actually objected to
25 the stone patio down below and would prefer us to
have wood.
March 29 , 2007
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2 BOARD MEMBER OLIVA: Really?
MS . DOTY: Yes . Can' t win for losing.
3 BOARD MEMBER OLIVA: And the new porch, is
it going to be on the stilts the way this one is?
4 MS . DOTY: I think it will be on stilts
but it will be to code.
5 BOARD MEMBER OLIVA: And what is the other
new addition?
6 MS . DOTY: But it will be enclosed like
there' s I think lattice work around it now.
7 BOARD MEMBER OLIVA: Yes .
MS. DOTY: So the underneath would be
8 enclosed.
BOARD MEMBER OLIVA: And there was another
9 new addition to be put on according to your notice
of disapproval.
10 MS. DOTY: The only other addition I
believe has to do with the --
11 BOARD MEMBER OLIVA: Trellis .
MS. DOTY: Are you talking about the
12 trellis or are you talking about the deck going
out to connect up to the retaining wall, which was
13 not under a permit previously.
BOARD MEMBER OLIVA: Right.
14 MS. DOTY: That way you don' t have to step
off the deck and walk through soil or rock or
15 whatever to get to the steps. The trellis is
landward of a permitted structure. The CO'd
16 structure therefore, it' s not on for the
variance.
17 BOARD MEMBER OLIVA: And is the sun porch
going to be the same dimensions as the old one?
18 MS . DOTY: Yes . You mean the screened
porch?
19 BOARD MEMBER OLIVA: Screened porch.
MS. DOTY: Yes .
20 BOARD MEMBER OLIVA: And you' re going to
have the new liftable stairs?
21 MS . DOTY: Liftable from the water and
ice. You have a hurricane coming, you raise it
22 up. I know most of those get raised up in
October, chained and locked up.
23 BOARD MEMBER OLIVA: I probably forgot
something else, so I' ll let some of my colleagues
24 carry on.
CHAIRMAN DINIZIO: Okay, Jerry?
25 BOARD MEMBER GOEHRINGER: Can we see the
plan, the specifications some time for the
March 29 , 2007
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2 swimming pool?
MS . DOTY: The new one?
3 BOARD MEMBER GOEHRINGER: The proposed
one, right. Does that 18 by 35 include the steps
4 going in or is that the actual size of the pool?
MR. KEITT: The steps are in addition to
5 the 18 by 35 .
MS . DOTY: So it will be cut out backward.
6 BOARD MEMBER OLIVA: It looks as though
it' s just the pool that' s 18 by 35 .
7 BOARD MEMBER GOEHRINGER: The pool is 18
by 35 then the steps are more.
8 MS. DOTY: I nearly killed myself as an
infant or a two year old child on pool steps like
9 that, so I don' t focus on it.
BOARD MEMBER GOEHRINGER: Debra, you also
10 said that Soil and Water suggested a wood deck
instead of rock?
11 MS . DOTY: Yes, they did.
BOARD MEMBER GOEHRINGER: It' s amazing.
12 MS . DOTY: As I said, you can' t win for
losing.
13 BOARD SECY. KOWALSKI: They didn' t say why
either?
14 MR. KEITT: It was a drainage thing.
MS . DOTY: It was a drainage thing, I
15 guess it was more permeable.
BOARD MEMBER WEISMAN: Than a permeable
16 surface. I have a couple questions. I don' t see
it called out on here, what about a dry well for
17 the pool?
MS . DOTY: We' re going to do all of
18 that. This is just a preliminary site plan for
you all . We' ll have dry wells for the pool and
19 for the down spouts .
BOARD MEMBER OLIVA: Away from?
20 MS . DOTY: Away from.
BOARD MEMBER WEISMAN: I also see you' re
21 adding, while we' re getting specifications for a
pool, you' re adding a spa.
22 MS . DOTY: That' s within the decking.
BOARD MEMBER WEISMAN: Can we see the
23 specs within that as well? There' s also weight on
that and I'm sure it' s shallow depth. You' re
24 actually expanding the deck from 16 by 20 to
21 by -- 21 . 6 by 22 . Slightly larger.
25 MS . DOTY: Yes, part of that takes into
account what was built but without a permit. Did
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2 everybody get out there when the property was
staked?
3 BOARD MEMBER WEISMAN: Yes .
MS . DOTY: So you don' t need these photos?
4 BOARD MEMBER OLIVA: Sure, we' ll see
photos too. If you want more photos I have lots
5 of them I took.
BOARD MEMBER WEISMAN: One more question.
6 BOARD MEMBER OLIVA: I do that every month
so we have some sort of record of what we see.
7 BOARD MEMBER WEISMAN: In view of the
recommendations by Soil and Water, which you
8 acknowledge in your most recent letter for native
planting of some sort, your site plan proposes a
9 lawn, a seeded lawn, which of course suggests
potential chemicals and so on, and does not do the
10 same thing that native plants would do in terms of
retention of groundwater runoff and things like
11 that. How important is that seeded lawn to your
landscape plan; would you be willing to consider
12 the creation of a landscape plan that takes up
some of the recommendations of Soil and Water for
13 native planting?
MS . DOTY: As I recall, and I'm going to
14 have to look at the letter again, the beach grass
and native plantings were around the edges and
15 they did say seeding rather than sodding. They
wanted the area seeded rather than sodded, and we
16 certainly will listen to that and do that. I
imagine they're not going to use pesticides .
17 BOARD MEMBER WEISMAN: Most lawns are
chemical lawns .
18 MS . DOTY: I was going to say you haven' t
been to my house.
19 BOARD MEMBER WEISMAN: Well, I think Ruth
has asked most of the questions .
20 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON: My questions have
21 essentially been answered. Just to follow up on
one, the reason for the expansion of both the pool
22 and the deck is obviously because the client wants
it, but that is being sort of paid for by the fact
23 that there is going to be a shallower pool .
MS. DOTY: That' s correct.
24 BOARD MEMBER SIMON: And the calculation
that shows that' s going to be consistent.
25 MS. DOTY: In addition you need areas for
people to sit and I think that' s the reason for
March 29 , 2007
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2 the expanded deck. We had a deck that was
slightly larger anyway than it should have been.
3 There' s one extension on the west side that' s
getting lopped off entirely. So, we' re just
4 trying to allow for various seating areas on the
deck which being water side of the house that' s
5 where one would want to congregate.
BOARD MEMBER SIMON: That' s fine, thanks .
6 CHAIRMAN DINIZIO: I have no
questions . I' ll open that up to the audience, see
7 if anybody has anything to say?
MS . DOTY: If I may, I would like to ask
8 the Board to move as quickly as possible because
we have been waiting since last fall and we have
9 had erosion on the property. We'd like to get
moving on it as soon as possible.
10 CHAIRMAN DINIZIO: We' ll take that under
advisement, Miss Doty. Thank you very much. Does
11 anybody else need to testify? Does anyone need to
say anything for or against this application?
12 BOARD MEMBER GOEHRINGER: I have to say,
Jimmy, we have to close this hearing pending
13 receipt of those two things, specifications on the
hot tub or spa and specifications on the pool .
14 CHAIRMAN DINIZIO: So you' re making that
motion, Jerry?
15 BOARD MEMBER GOEHRINGER: Yes, I am.
(See minutes for resolution. )
16 -------------------------------------------------
CHAIRMAN DINIZIO: Our next hearing is for
17 Robert Seeley and that' s Jerry' s .
BOARD MEMBER GOEHRINGER: Yes. This is a
18 request for a variance under Section 280-116 based
on the Building Inspector' s April 12, 2006 notice
19 of disapproval concerning a proposed accessory
swimming pool structure in a location at less than
20 100 feet from the top of the bluff adjacent to the
Long Island Sound at 1250 Sound Drive,
21 Greenport. Is Mrs. Mesiano here?
MS . MESIANO: Yes . Catherine Mesiano on
22 behalf of Mr. Seeley. We' re reconvened, there
were a number of issues raised at the initial
23 hearing. And there was a postponement and we have
since addressed the issues that had arisen.
24 I think you have in your possession a copy
of an engineering report prepared by Douglas Adams
25 of Young and Young, and Mr. Adam' s report deals
with the issues raised in the earlier report by
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2 the Soil and Water Conservation Board with respect
specifically to what appears to be erosion on the
3 bluff. And upon greater study we see that it' s
actually the foot path for the deer. They scale
4 the bluff at that point because the naturally
vegetated area seaward of Mr. Seeley' s house and
5 on the face of the bluff is the bedding area for
the deer. So it' s been observed numerous times,
6 see the deer up and down, witnessing their bedding
areas, et cetera. I have also retrieved some
7 photographs, aerial photographs that were taken
prior to the development of the site, and it' s
8 interesting to note that the same disturbance,
degree of disturbance appears to be or is apparent
9 in those photographs let me give you the best of
them (handing) . These are photographs taken prior
10 to the development of the site. This is our site
here. This is the house to the east of us, and
11 this is the area west (indicating) . There' s a
number of photographs, some of them are closer.
12 CHAIRMAN DINIZIO: We should mark
those. Let' s mark this "deer path. "
13 MS . MESIANO: So I think the gist of what
I'm trying to say is that the area identified by
14 Soil and Water is not an area of erosion that' s
caused by storm water runoff going over the face
15 of the bluff, but rather it' s the area that the
deer use to get to their bedding areas. The
16 neighbor to the west has chain link fence all the
way around his property, and if you look at those
17 photographs in more depth, you' ll see that the
neighbors on either side have far more extensive
18 lawn areas . They have fenced areas around their
perimeters and their natural vegetation, the area
19 of natural vegetation has been diminished
significantly over time. Whereas our area of
20 natural vegetation has remained untouched.
So in considering the Board' s objections
21 with respect to the Soil and Water Conservation
Board' s report, Mr. Adam' s, our engineer,
22 addressed those points and his report covers those
points . I believe his report goes on to say that
23 storm water runoff is not being pitched over the
bluff .
24 Another point that was made regarding dry
wells, there are dry wells to contain the storm
25 water runoff from the roof of the structure, and
the proposed pool would of course have its own
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2 discharge dry wells, and that' s noted. I do have
surveys also to give the Board. We have had the
3 topographic data added to the map, and we have
tightened up and snugged up the proposed pool to
4 the extent practical, we're able to maintain a 77
foot setback. How many copies would you like,
5 Linda?
BOARD SECY. KOWALSKI: I think it would
6 help if we could have seven, if you have that
many. Seven is always that magic number.
7 MS . MESIANO: Would you like me to wait so
you can review what you have?
8 BOARD MEMBER GOEHRINGER: Thank you.
BOARD SECY. KOWALSKI: Cathy, I was
9 wondering if I could ask you a quick question. I
faxed over a copy of a letter we got from the
10 Planning Board; did you receive it?
MS . MESIANO: Yes, I did, and I' ll address
11 that.
BOARD SECY. KOWALSKI : I just wanted to
12 make sure you got it, thank you.
BOARD MEMBER GOEHRINGER: All right, we' re
13 ready.
MS . MESIANO: All right. As far as the
14 new survey is concerned, just to reiterate, the
greatest setback we can achieve is 77 feet to the
15 top of the bluff and the pool discharge is noted.
Now, setting that aside, I would refer to Mark
16 Terry' s LWRP assessment, and I would like to note
that this matter has been before the Trustees, and
17 the Trustees have approved this plan. So I don' t
know how relevant the LWRP is in light of the fact
18 that the Trustees have received an assessment. I
submitted to them what I submitted to you. So I
19 don' t really -- I appreciate what' s being said in
his report relative to policy Number 6, but the
20 Trustees have approved an inground pool .
ASST. TOWN ATTY. CORCORAN: Cathy, is the
21 only basis he finds it inconsistent is
nonresponsive compliance with the Trustees
22 jurisdiction?
MS . MESIANO: No. He' s saying the minimum
23 setback of 100 feet is required by 280-116A.
ASST. TOWN ATTY. CORCORAN: So that' s what
24 we' re talking about right now.
MS . MESIANO: Yes . But we offered various
25 points of mitigation which the Trustees felt was
significant, thereby offsetting the inconsistency.
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2 ASST. TOWN ATTY. CORCORAN: If they issue
the permit that will take care of the
3 inconsistency as related to Chapter 275 . So this
Board doesn' t need to worry about that. This
4 Board needs to worry about this jurisdiction.
BOARD SECY. KOWALSKI : Cathy, can I ask
5 you a question? This map is different than the
map we had on file; is this revised?
6 MS . MESIANO: It' s a new map with a new
topo.
7 BOARD SECY. KOWALSKI: It' s revised, the
shape and the setback is revised, right?
8 MS . MESIANO: The shape and the setback,
we increased the setback and reduced the size of
9 the pool .
BOARD SECY. KOWALSKI: Then the setback is
10 to a different measurement than what the other
pool was; it looks like it' s not the closest
11 point.
MS . MESIANO: I would not agree with that
12 because the surveyor normally has to take the
measurement from the closest point. So I would --
13 BOARD SECY. KOWALSKI: They don' t always,
that' s why I'm asking. I just want to be sure.
14 MS . MESIANO: I have a scale.
BOARD SECY. KOWALSKI: Thank you. The
15 other map is measured to a different point on the
bluff.
16 MS . MESIANO: After the topographic survey
was done and the pool was moved closer to the
17 house and made smaller, the dimensions and the
orientation was different.
18 BOARD SECY. KOWALSKI: But they measured
at a different point to the top of the bluff . The
19 top of the bluff line is at a different mark on
this map than what the previous maps were, which
20 appears that it might be a couple of feet. It' s
not a big difference, but it might be a couple of
21 feet.
MS . MESIANO: Could I just see what you' re
22 referring to?
BOARD SECY. KOWALSKI: Sure (indicating) .
23 MS . MESIANO: I think the best answer I
can offer you is the original, the earlier map is
24 based on a different configuration and a different
orientation, and we have since changed both, the
25 configuration, the size, and the orientation of
the pool.
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2 BOARD SECY. KOWALSKI: You' re saying that
the different plots on the top of the bluff don' t
3 matter, you're still going with a 77 figure
whether it' s correct or incorrect, right?
4 MS . MESIANO: I'm relying on it being
correct because this is a certified survey by
5 Young and Young.
BOARD SECY. KOWALSKI: We don' t question
6 that.
MS . MESIANO: And also because I had a new
7 topo done, I would rely more on the actual topo
than the earlier map which I believe was the --
8 and I will quote it from the filed map, there was
a line imposed that said approximate top of bluff,
9 and I think we identified the top of the actual,
the actual top of the bluff rather than going with
10 approximate. Just two different measurements, I'm
just making that point.
11 BOARD MEMBER SIMON: But it is still
apparent from the new map that there is no arrow
12 from the pool to the closest point on the top of
the bluff as the map. The only one you have is
13 the one that goes off on an angle at 77 feet. So
we really don' t know how much less than 77 it
14 would be if there had been a measurement point
taken at that point. How different that would be
15 from the 66 of the original application.
MS . MESIANO: If we use the approximate
16 top of bluff.
BOARD MEMBER SIMON: If we use that dotted
17 line on the diagram there' s no -- I don' t know if
you can do to scale or not. There' s simply no
18 direct line between the pool and the closest
points to the pool on the top of the bluff .
19 CHAIRMAN DINIZIO: Michael, I think that
that 77 .71 is the --
20 BOARD MEMBER WEISMAN: That is the closest
distance. When you swing a line east and west,
21 then you will find the 77 .7 is the closest point
of that pool .
22 MS . MESIANO: That' s how I read the
survey.
23 BOARD MEMBER SIMON: If you took a compass
and swung it.
24 BOARD MEMBER WEISMAN: That diameter is
going to be the shortest.
25 MS . MESIANO: That' s the shortest.
BOARD MEMBER WEISMAN: If you arc the
March 29, 2007
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2 radius .
MS . MESIANO: Thank you. That' s what I
3 meant to say. So I hope that I answered your
question that we believe based on our survey, our
4 updated topo, our identification of the top of the
bluff and our redesigned pool plan that we are
5 able to maintain a setback of 77 .71 feet from the
top of the bluff.
6 BOARD SECY. KOWALSKI: At the closest
point?
7 MS . MESIANO: At the closest point, yes .
I believe another issue your Board has
8 raised is with respect to a covenant that was
raised that was filed for the Planning Board that
9 refers to a limitation, no grading shall be
permitted within 100 feet of the top of the bluff
10 except that which may be necessary to control or
remedy erosion or to prevent storm water from
11 flowing over the edge of the bluff. The opinion
that came to you from the Planning Board, or I
12 should back up and restate that and say that in
the Planning Board' s opinion they believed that
13 installation of a swimming pool constitutes
grading. I'm not sure that I agree with that
14 statement because it is the intention that a
swimming pool installed in this site would be
15 installed at grade and any excavation would be
restored to grade. Further, with the points that
16 were made about the concern to the bluff, the
potential for storm water runoff, it' s
17 Mr. Seeley' s intention to install a low berm that
would eliminate the possibility for any storm
18 water running over the bluff and causing any
further degradation. Even though the erosion
19 that' s there is not caused by storm water runoff
in the event of a large storm, extraordinary
20 storm, there could be a situation that would arise
where storm water could flow over the bluff and
21 those areas that are weakened by the animal paths
would certainly be prone to wash out because
22 they' re not vegetated. So Mr. Seeley would be
inclined to put in a berm that would mitigate that
23 problem. Now, that item Number 11 in that
covenant and restriction does make an exception
24 for grading and change of elevation, et cetera,
for the purpose of mitigating storm water runoff .
25 So there is an exception in there and I would
further address the point that in the covenants
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2 and restrictions there appears to be a covenant or
restriction rather on any disturbance within 100
3 feet. While that is a recorded covenant, I would
like again to point out to you in the photographs
4 that I have given to you is that the houses on
either side of Mr. Seeley' s property have swimming
5 pools, the house to the east admittedly is not
part of this section of this subdivision, however,
6 the lot to the west is part of this subdivision.
And it' s our understanding that the information on
7 the filed map was not the information that was
used on the survey when that building permit was
8 obtained. Whether or not any attention was given
to the covenant with respect to the 100 feet, I
9 couldn' t say, but I think it' s irrelevant at this
point because that house and pool are closer than
10 100 feet to the bluff . It' s the same subdivision,
and we' re asking for no more than what that
11 property owner has regardless of the manner in
which he came to obtain it; it has been done in
12 the recent past under the same set of rules, under
the same covenants, that house is certainly
13 closer, everything is one within 100 feet. Our
mistake was going by the rules and showing
14 everything as it was displayed on the filed map.
And we' re caught between a rock and a hard spot.
15 I would further like to add that in matters
concerning the covenants, I think that that' s a
16 matter for us to take up with the Planning Board.
We' re not asking you to override the Planning
17 Board' s covenants. We' re asking you to consider
only what' s before you, which is a request for a
18 variance from a setback from a bluff, which is a
request that' s not unlike many that have come
19 before you. We' re asking for 77 feet and an
earlier person was asking for zero clearance to a
20 bulkhead. So we' re not asking for a significant
setback variance.
21 We understand that we need to go back to
the Planning Board because there is a mechanism
22 written into that covenant that provides for
amendment to those covenants. Further, that
23 mechanism provides that notice be given to all the
property owners, adjacent property owners within
24 the subdivision. I have a letter, which I believe
you have received from the homeowner' s association
25 that supports this application for the primary
reason that Mr. Seeley is unable to sell this
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2 house. Everyone who looks at it is very taken by
the house, very interested by the house and the
3 reaction is the same, I love it, but I'm not going
to buy it without a pool . So the point of the
4 homeowner' s association who represent all the
property owners is that the inabilities for that
5 house to be sold is negatively impacting their
property values, and I think that' s a factor that
6 is relevant to this argument.
BOARD MEMBER GOEHRINGER: Mrs . Mesiano,
7 then why don' t you hold this application in
abeyance and go to the Planning Board? That would
8 have been much easier for us than soliciting this
most recent memo from them. You know, I am not
9 making a statement for the Board but that would be
my normal situation that I would suggest.
10 MS. MESIANO: My answer to that is that we
would be willing to take a decision from this
11 Board subject to the Planning Board' s decision. I
saw this Board as the greatest obstacle. So I
12 like to start with my greater obstacle and pick my
way through them. And with the homeowner' s
13 support in the neighborhood, I think that the
Planning Board would have an easier time in
14 modifying the amendment because at most it affects
two lots out of the entire subdivision. So, I
15 would rather conclude this matter with your Board,
even if your decision is subject to the Planning
16 Board' s positive decision.
BOARD MEMBER SIMON: You can urge us to
17 ignore the question about the covenants, and
pretend it doesn' t exist, and it looks as though
18 the way things are moving is a suggestion at our
last hearing was that before we decided we wanted
19 to know about this covenant, and unless you can
argue that we would be correct in saying that
20 really isn' t our business, that for us is one of
the hard questions that we have to get past before
21 we can do a full assessment of this application,
which would include that. It seems to me that
22 would have to be wiped away before we could give a
full review.
23 MS. MESIANO: If I might say, I have heard
this Board and other agencies within the town
24 stating to me directly that it is not their
responsibility to enforce covenants . And that' s
25 the only thing that' s before you is the setback,
but I will like Mr. Bressler to address that.
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2 MR. BRESSLER: If I may for the applicant,
Eric J. Bressler, Wickham, Bressler, Gordon and
3 Geasa, Main Road, Mattituck.
Mr. Goehringer raised a very interesting
4 question which now, Mr. Simon, you' re following up
on. I think I would like to amplify on Mrs .
5 Mesiano' s comment, why here -- actually why the
Trustees first and here second, and the Planning
6 Board last, because to do otherwise would put us
into a vicious circle. When we go to the Planning
7 Board, we want to have in hand a plan that has
been blessed by the Trustees, which it now has
8 been, which we' re hoping that you will bless, so
that the Planning Board is in a position to
9 determine, A, whether or not it even constitutes a
regrading or if it does, exactly what it is that
10 they will be considering that other boards have
said is okay with them within their jurisdictional
11 purview. Otherwise we' re going to go to the
Planning Board and they're going to say, where is
12 this pool going to be; how far back is it going to
be; what shape is it going to be; how do you
13 measure to the bluff line. You' re going to ask
all these questions, now we' re done and we have a
14 project that they can rationally consider.
Now, in terms of the covenant, that' s a
15 very interesting question and I think the answer
is, if you look at your enabling statute, you ask
16 yourself, how do those factors apply to this
particular project, and if you look, you will find
17 that some of the issues for example that are dealt
with by the Trustees are not necessarily within
18 the purview of this Board. Similarly, the
enforcement of covenants is not directly within
19 the purview of this Board, but what this Board has
done in the past is say we are going to grant
20 approval based upon our statute and based upon the
factors that we look at, but we are not going to
21 make a determination or express an opinion as to
what other approvals may or may not be necessary.
22 And in this case you don' t need to say that with
respect to the Trustees because we have their
23 approval in hand, and we have given you their
survey. To the extent that the Planning Board has
24 informally said we think there is something that
has to be done, we' re not asking you to opine on
25 that; we' re asking you to opine and make a
decision as to whether or not 77 point whatever
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2 feet is something that weighing all the various
factors is something that' s appropriate subject to
3 whatever else anybody may do. The Planning Board
has not seen fit to do anything with respect to
4 the neighbor. Now that' s not necessarily
determinative on us, nor will the Planning Board
5 in its consideration, I would think because
they' re concerned about a certain item, which I do
6 believe kind of overlaps with the Trustees because
they' re talking about storm water, nor will they
7 consider the factors that you consider, what it' s
going to do to the neighborhood because that' s not
8 within their purview.
BOARD MEMBER SIMON: I want to ask a
9 follow-up, if we could, if we could accept your
argument.
10 BOARD MEMBER GOEHRINGER: Could I question
that argument for one second before you bring that
11 follow-up?
BOARD MEMBER SIMON: It' s a rejoinder to
12 his argument.
CHAIRMAN DINIZIO: It' s Michael' s turn.
13 BOARD MEMBER SIMON: One of the reasons
this is brought is it looked ,as though we needed
14 an interpretation by the Planning Board of
something which is in their domain, which is
15 namely the covenant. You' re saying if there were
a covenant which we knew about, which was totally
16 unambiguous, unequivocal but we knew that it
precluded the approval of this because it was very
17 clear, it didn' t matter the interpretation, that
we should go ahead and approve it or not as though
18 we didn' t know anything about that.
MR. BRESSLER: No. What I'm saying is you
19 cannot sit there and cover your eyes and your ears
and say I don' t know anything about it; but what
20 you can say is we' re aware of it, it' s not within
our purview and our approval doesn' t constitute an
21 approval with respect to what anybody else has to
do. So therefore, if we have a Trustees permit in
22 hand, and we have a Zoning Board in hand, and we
go to put a shovel in the ground and the building
23 department says, hey, wait a minute, you don' t
have this and you don' t have that, then we' re
24 going to be stuck with that. I'm not saying that
you can' t acknowledge its existence, but it is not
25 for you to apply that. It is for whatever board,
and in this case the Planning Board, to say upon a
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2 full presentation, either, gee, we've looked at
your project as approved by these boards and you
3 know what, it' s really not a regrading. They
could say that because they haven' t seen an
4 approved plan by anybody yet.
BOARD MEMBER SIMON: But they have seen
5 the application and they decided it is a
regrading. Are you suggesting that if you go back
6 to them armed with our approval that they may
change their mind?
7 MR. BRESSLER: I'm saying that nobody has
sat down with them and walked them through it and
8 given them the type of presentation that we' re
giving you. And I'm saying, yes, when a board is
9 actually educated as to what the details are, they
may very well say, well, you know what, maybe it' s
10 a temporary regrading, maybe we don' t care about
it, maybe if you put up hay bales, maybe if you
11 put up the berm, it' s no problem. But this is
something that has to be presented to them, and I
12 think it' s a place respectfully where this Board
shouldn' t go, doesn' t have to go and it can
13 protect itself by saying it' s subject to
whatever -- for example, suppose we didn' t have a
14 Trustees permit, one of you would probably suggest
this doesn' t constitute an approval with respect
15 to any permits that are necessary from the
Trustees . Necessarily we have to go someplace
16 first and we did. We went to the Trustees .
BOARD MEMBER SIMON: As you know our legal
17 relationship with the Planning Board is not the
same as it is with the Trustees; and that' s well
18 known, so I don' t think the analogy is very
useful. I don' t think the Trustee argument is
19 particularly relevant on this particular dispute.
We don' t have the authority to trust what the
20 Planning Board told us because you haven' t had a
chance to make your pitch to say that they
21 wouldn' t take this very seriously, maybe you' re
right.
22 MR. BRESSLER: We don' t know, that' s
exactly what I'm saying to you; we've not been
23 there yet and we shouldn' t put the cart before the
horse. And this Board, all it has to say is we' re
24 not ruling on that. That is something for some
other board and our approval cannot be construed
25 as giving the applicant permission to do that
which he may not otherwise be able to do, and you
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2 apply the balancing test and hopefully you' ll say,
yes, this pool is consistent with the neighborhood
3 and we' ll move on and make our pitch.
BOARD MEMBER SIMON: So you think it was
4 inappropriate for us to ask the Planning Board for
an interpretation?
5 MR. BRESSLER: I'm not saying it' s
inappropriate.
6 BOARD MEMBER SIMON: We' re not supposed to
pay any attention to the answer.
7 MR. BRESSLER: I'm not saying that it' s
inappropriate because suppose the answer had come
8 back and said it' s no problem at all . Then you
don' t need any cautionary language, you don' t have
9 to cover your backside by saying, gee, you better
think about this Board because you' re protected
10 but now that they have said maybe there' s
something there, you put that in the decision and
11 we move along down the road and let those people
do whatever they're going to do, and we' re done
12 here hopefully with a plan that you can live with,
the Trustees can live with and we' ll go elsewhere
13 in the building or some other building or whatever
they may be.
14 ASST. TOWN ATTY. CORCORAN: I think we all
agree that you' re going to need the Planning
15 Board' s blessing to get a building permit for what
you' re seeking to do. I see your practical
16 argument, I also see your legal argument, but
practical argument also has some risks because you
17 have to be careful for what you wish for, you may
get this Board to issue you a decision that you' re
18 asking politely for and they may decide that among
other reasons, the Planning Board' s input on the
19 issue leads them to deny your variance, then
you' re going to the Planning Board without a
20 variance and, in fact, a denial from this Board
without the opportunity to present your case to
21 them to say, no, it' s really not a problem, which
sounds like you have argument towards .
22 MR. BRESSLER: I don' t believe that this
Board would do that. I think if this Board took
23 the factors that are applicable to its decision,
made a determination and then carved out whatever
24 other approvals are there, I could go armed with
that. If this Board sees fit not to grant this
25 relief, then it' s not going to grant that relief
and we' ll have to do whatever we have to do, you
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. 2 know, and there' s nothing I can do about that. I
don' t think it' s appropriate for this Board to say
3 no, and then send me someplace else and then
say --
4 ASST. TOWN ATTY. CORCORAN: Well, there is
something you can do about it if this Board is
5 asking you to go present your case to the Planning
Board and see if you can convince them otherwise.
6 other than that they have already said. But if
you don' t want to do that, you obviously don' t
7 have to do that. You can tell this Board I want a
decision. You have all the information you' re
8 getting from me, and please decide.
MR. BRESSLER: As a practical matter, I
9 want to know that that' s what I want to present to
them, I want to know what I have in hand so that I
10 can go to them and say all the other boards have
said, this is okay; now, what do you guys say,
11 this is an approved plan. I don' t want to
ping-pong back and forth and have the Planning
12 Board say, well, now where exactly are you going
to do this, and what are the dimensions and how
13 are we to evaluate this in terms of our covenant
if the Zoning Board or the Trustees won' t say this
14 is what would be approvable to us. I want to do
it in a manner that makes sense so that the last
15 people in line are truly the last people in line
and I don' t get bounced around. And I don' t think
16 anybody wants to see that, and by doing it that
way, there' s no violence done to the process or
17 the merits because everybody considers the factors
that are relevant to them. If somebody along the
18 line says no, then no.
BOARD MEMBER GOEHRINGER: This statement
19 is both to Mr. Bressler and to the town attorney,
you are absolutely correct that we' re not bound by
20 covenants, but I don' t normally breach covenants .
I'm not speaking for the Board, I don' t, I
21 honestly don' t. And I think in the matter of the
last 27 years we have breached a couple covenants
22 and environmentally sensitive lots where we had to
push the houses a little closer to the road, but
23 those were the covenants of the individual
property owners, when a board in this town creates
24 a covenant, be it this covenant or the covenant of
a building area, this Board, in my opinion, this
25 Board goes out of its way to stay within the
confines of that covenant; in other words, we
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2 don' t breach each other' s covenants usually. And
I have to tell you the only place I have ever seen
3 it is in the possibility of a lot division where
there may have been agreement on our Board to
4 grant it or a disagreement on their board not to
grant it, but I have never seen it in a situation
5 like this. And I have to tell you by you saying
that I disagree with you, that doesn' t mean that I
6 don' t like you; that means that I disagree with
you and we don' t normally do that. We will
7 normally discuss it with them as we have just done
in asking them what their opinion was regarding
8 this particular covenant.
MR. BRESSLER: Yet by doing what I
9 propose, you do not do violence to that particular
notion. Which is they by virtue of the covenant,
10 they have the power to vary that, and by your
saying the factors we recognize there' s something
11 out there. It' s not within our power to do
something about it, but within our power. We have
12 no problem with our standards. What you want to
do with it is up to you, and I don' t think that
13 that does violence to the division of authority,
nor does it put you in a position of overruling
14 them since you have specifically stated, we' re not
doing that, we' re not overruling you.
15 BOARD MEMBER GOEHRINGER: My suggestion is
again, hold it in abeyance and go over to the
16 Planning Board and talk to them.
BOARD MEMBER SIMON: One way that we could
17 cut the Gordian knot would be to say, look, the
issue is not how much or how little we should
18 respect the covenant, but since this particular
covenant goes to the root of precisely the kind of
19 thing that the Zoning board is concerned with, we
can say covenant schmovenant, let us look at the
20 problem of potential erosion with respect to the
surface and we could pretend there was no
21 covenant, and so we could make a decision one way
or another by ignoring the covenant. I'm not sure
22 it would necessarily be in your best interest,
unless you believe we' re relying solely on the
23 language of this covenant, which has really
nothing to do with what we really do.
24 MR. BRESSLER: No, it doesn' t. And it
seems to me when you look at the balancing test,
25 and you look at the character of the neighborhood,
you look at the size of the 100 foot variance
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2 that' s being requested, all of those factors
militate in favor of the grant of a relief . Yet,
3 to stick shovel in ground, may very well result in
the Building Inspector coming out saying you got
4 to go and you got to get relief from this covenant
or the determination that the covenant doesn' t
5 apply or something of that nature. But I don' t
think that prevents you from saying all other
6 things being equal of that Board, 77 point
something feet is something that this Board can
7 live with. It' s not a problem, it doesn' t change
the character of the neighborhood.
8 Those are the factors that I think this
Board should consider and by doing what I have
9 proposed, it saves additional procedural steps .
Trustees did not take that position, they said
10 we' ll measure it against our standards, and you
got to go somewhere else, and if you folks do the
11 same thing, and say okay, measure it against our
standards, it passes muster, but be careful,
12 there' s something else out there, you've got to go
somewhere else, don' t send us yo-yoing back and
13 forth. Suppose we go there and the Planning Board
says, well, what is it that the Zoning Board said,
14 is 77 feet going to be okay with them? How do we
know? You know, chicken and the egg. We've come
15 in a logical sequence and we don' t expect anybody
to take responsibility for other people' s
16 decisions, and that' s basically where we' re coming
down here, I think it' s a simple approach. I
17 think it works . I think you' re not overruling
covenants, you're not side-stepping covenants,
18 you' re recognizing them and sending us to a place
where they will be dealt with one way or the
19 other.
BOARD MEMBER SIMON: Just one thing I want
20 to say for clarification, and then I' ll shut up.
I'm assuming that we could consider the 77 feet
21 and the question about excavation of a lawn that
close to the bluff as if there were no covenant.
22 It wouldn' t be that our decision would necessarily
be based entirely on the 77 feet, but it might be
23 based on previously the same things that turn out
to be behind the covenant.
24 MR. BRESSLER: It may very well be and I'm
sure you would take into account the fact that the
25 Trustees have permitted it, you would take into
account the fact that we have offered to berm
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2 further down, even though we don' t see any present
necessities for it, it' s possible Soil and Water
3 want us to do that, we have no objection to
that. You want dewatering dry wells, we' re
4 willing to do that, Trustees insisted on it, we
have agreed. So we expect this Board to look at
5 all of those things, and we' re confident that when
you look at them, you will say, that this is
6 sensible in applying the balancing test, doesn' t
do any harm to anything. We hope you' ll then say
7 but we' re not making a determination as to what
other people have the ability to enforce or not
8 enforce, and that' s that covenant. And even if
you were to rule you get this and it' s an
9 exception from the covenant, that wouldn' t be
binding on them because you don' t have the power
10 to do that. So I think that' s a long answer to a
short question.
11 BOARD MEMBER WEISMAN: It' s pretty clear
what the arguments are and what your procedural
12 expectations are. We do have jurisdiction over
environmental impact as part of our balancing
13 test. My question actually is since you have come
up with a very specific plan, do you have
14 specifications for the proposed kidney-shaped pool
with the landward spa? Because I would like to
15 know the depth of that pool .
MS . MESIANO: The maximum depth of the
16 pool would be eight feet at its deepest point. I
believe our engineering report also addresses the
17 question as to the potential risk to the bluff in
the event of such a structure constructed or
18 installed, and in the engineer' s opinion that
poses no risk to the bluff because of the -- I
19 think you would say the physics of it as well as
the proximity to the bluff, and I think one of the
20 big factors that we haven' t talked about is the
hardship that I wouldn' t call it self-imposed
21 because I don' t think that there was any
intention -- what I'm trying to say is I don' t
22 think that Mr. Seeley anticipated that there would
be such difficulty in selling the house without a
23 pool . It' s been shown many, many times and I know
I'm repeating myself but that really is the crux
24 of it. Mr. Seeley built the house with the
intention of using it for his own personal use.
25 He got the house done and his wife had other plans
and the house went on the market. And I don' t
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2 think he ever anticipated that there would be that
degree of difficulty in selling the house without
3 a pool. So the cost to him every month is very
significant. The neighbors have set forth their
4 concern to their property values because the house
is not saleable as it presently exists and that' s
5 a principal driving factor here because it' s the
opposite of what you usually see, not granting the
6 variance causes a negative impact to the
neighborhood and continues the hardship on
7 Mr. Seeley because that' s the biggest objection to
the property is that it doesn' t have a pool .
8 BOARD MEMBER WEISMAN: I just want to make
sure you' re maintaining a 15 foot side yard?
9 MS . MESIANO: Yes, we' re not asking for
any other relief.
10 BOARD MEMBER WEISMAN: And you have added
to this a pool discharge?
11 MS. MESIANO: Yes, we have.
BOARD MEMBER WEISMAN: And a four foot
12 fence around the pool?
MS. MESIANO: Yes.
13 BOARD MEMBER WEISMAN: And the spa is now
located landward as opposed to seaward?
14 MS . MESIANO: Yes .
CHAIRMAN DINIZIO: Okay.
15 BOARD MEMBER WEISMAN: No further
questions .
16 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: First of all we have
17 the LWRP determination to be 100 foot back. We
have a covenant and restriction from the Planning
18 Board. I have been up at this site a couple of
times, the land slopes down toward the top of the
19 bluff. There is a bit of a vegetated area at that
top of the bluff. There is erosion on that bluff
20 in a couple spots and it is not caused by deer.
It was caused by some recent rains because of the
21 pile of dirt sitting down on the toe of the bluff,
and I have pictures of it and that path he calls a
22 deer path must have been an old walking path
people have had for many, many years.
23 MS . MESIANO: That' s an old road that
exists on the bluff. That' s different from the
24 vertical paths where the deer --
BOARD MEMBER OLIVA: They' re not vertical
25 paths; they' re erosion, I disagree with you.
They' re erosion you can distinctly see on the toe
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2 of the bluff where this pile of wet soil is
sitting there. For all these reasons, I myself, I
3 could not --
MS. MESIANO: I would just like to say
4 that those areas where the moist soil is sitting
at the toe of the bluff are those areas that have
5 been eroded -- I mean, I don' t want to argue with
you, but that was my point previously, that those
6 areas will be disturbed in the event of heavy
rains and I must repeat myself by saying that
7 installation of a berm to mitigate that is part of
this plan. We don' t believe that installation of
8 a pool at grade, and the end result will be the
grade that we presently have, constitutes grading
9 as such. We believe that installation of the berm
is permissible given the wording of the covenant.
10 I don' t know what else to express .
BOARD MEMBER OLIVA: I just say I
11 respectfully disagree with you
MS . MESIANO: And I respectfully accept
12 your comments.
CHAIRMAN DINIZIO: Ruth, are you done?
13 BOARD MEMBER OLIVA: Yes.
CHAIRMAN DINIZIO: Okay, I would like to
14 make a statement here because I'm holding it in.
Number 1, I don' t think that they' re deer paths
15 either, any more than Ruth does. And I am very
familiar with that area quite honestly, and the
16 deer used to go down where the road is .
MS. MESIANO: Right.
17 CHAIRMAN DINIZIO: They don' t go down
there any more because there' s a fence that blocks
18 that.
MS. MESIANO: That' s right.
19 CHAIRMAN DINIZIO: So these are not deer
paths, these are where the deer are either getting
20 so frustrated they can' t go up that path and going
down, or it' s erosion in some way or the deer are
21 causing erosion, in any case it' s all human made
and it' s recent, it' s not --
22 MS . MESIANO: We don' t disagree with that
statement. I think you said what I said in a
23 different manner. We' re both getting to the same
place.
24 CHAIRMAN DINIZIO: But the deer I know
used to go down that all the time. I live in that
25 area, I walk by that house every day.
MS . MESIANO: I believe one of the other
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2 covenants in this subdivision is that the only
fencing to be utilized is natural plantings on the
3 property line, and I have to note that the
property to the west is chain link fenced around
4 the whole perimeter. So that is discouraging the
deer from taking their natural path.
5 CHAIRMAN DINIZIO: Right. I agree. And
beyond that, now, I can kind of agree with Eric' s
6 argument about the cart before the horse kind of
thing, but we have to consider all the
7 information. And one of the things that is
glaring to me is that this lot, this subdivision,
8 would not be there were it not for someone
agreeing to this covenant. So, in changing the
9 neighborhood, I mean, if we make this decision, if
we decide that, we' re changing the neighborhood in
10 a huge way.
MS . MESIANO: I have to disagree with that
11 respectfully because two of the four waterfront
lots are developed, the other developed lot is not
12 in conformity with the covenants .
CHAIRMAN DINIZIO: But that' s not a
13 subject of this application. I'm talking about us
making a decision on this application. One of the
14 factors that we' re going to consider is the very
reason why, how this subdivision came to be.
15 MS . MESIANO: And I promised myself I
wouldn' t go here, but I have to say this, I have
16 had experience with a number of projects where
it' s always nice to be a Monday morning
17 quarterback, and you have the benefit of being
able to look back and question why things were
18 done the way they were, but I have found a pattern
of there being subdivisions created and on paper,
19 on its face, the covenants appear to be
reasonable, they' re covenants used in other
20 applications, however, when you look at site
specific conditions, the covenants don' t work,
21 when you look at the impact to the property owner,
the end user, this lot is not -- there' s practical
22 difficulties in the lot. The house itself that
was built is out of the ordinary because it' s not
23 designed as a house normally would be because of
the practical difficulties in developing a site
24 where the building envelope which is created by
taking away everything isn' t and you come up with
25 an area that' s 26 feet on end, 45 feet deep on the
other and you' re not left with any alternative.
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2 CHAIRMAN DINIZIO: No, Miss Mesiano, I
think you're putting the cart before the horse
3 again too, because what we have here is the
existing house that' s taken up by the footprint.
4 Now, what a Planning Board looks at, they' re just
looking at a lot. They put on whatever covenants
5 that they want, and Joe Developer signs it. He
says, I can live with this and he goes on his
6 merry way. Now, someone came to this lot and
built a house on this lot, nice house, beautiful
7 house. And quite honestly, it doesn' t have a pool
because the buildable lot is taken up by the
8 house.
MS . MESIANO: And I would have to say in
9 response to that to have created a house that
would have allowed for a reasonable size pool
10 would then have created a house that instead of
the potential buyers coming along and saying, gee,
11 I really love it, the pool' s great, but why did
you design such a poorly designed house?
12 CHAIRMAN DINIZIO: Again, that' s whole
part and parcel of when you buy a house. I mean,
13 come on --
MS . MESIANO: It is what it is. I can
14 only present to you what is there, what facts we
know, what work we have done to try to satisfy the
15 questions that you have raised. We have gone to
the expense and the time and the effort to give
16 you a reasonable engineering report to address the
issues that arose. That' s why we' re here because
17 we need relief because the property is less than
perfect, and we' re asking for your relief so we
18 may go on and ask for further relief down the
line.
19 CHAIRMAN DINIZIO: Just to be fair to you,
this gentleman that is speaking, right now, me,
20 I'm not inclined to grant this simply because I
find myself wondering why this covenant exists .
21 That' s what' s bothering me from this . I don' t
mind 71 feet, we've done 71 feet plenty of times .
22 BOARD MEMBER WEISMAN: 77 now.
CHAIRMAN DINIZIO: 77, I have no objection
23 to that, I have no objection to your erosion
control, the whole nine yards, but I'm finding
24 myself faced with an application that went through
years of trying to be approved and when it came
25 down to putting pen to paper, someone agreed to
this particular lot. I'm not going to say what
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2 the other lots are, I don' t know what they got
away with and I don' t care what they got away with
3 until they come here. But you got caught, and you
got caught in this kind of a bind. I can' t make a
4 decision until I know why that covenant exists,
there' s got to be a reason for that because it' s
5 not normal . And like I say, the entire
neighborhood was created based on this covenant,
6 and I'm unwilling to break that covenant. Not
even the fact that you' re trying to convince me
7 that digging a hole is not worse than grading, I'm
not going to even bring that.
8 MS . MESIANO: I don' t want to go there.
CHAIRMAN DINIZIO: Grading to me is raking
9 your lawn, digging an eight foot hole is a whole
lot more obtrusive and detrimental to this
10 particular covenant than just raking a lawn.
MS . MESIANO: Then I would like to say
11 this . I would like to not be foreclosed from
making our presentation and presenting our
12 arguments to the Planning Board and have the
opportunity to have them look at a site-specific
13 situation with factors that are specific only to
this site.
14 CHAIRMAN DINIZIO: So, what is your
preference?
15 MS. MESIANO: Well, you know what our
preference is .
16 CHAIRMAN DINIZIO: Do you want us to hold
the meeting open?
17 MR. BRESSLER: We want you to grant the
variance.
18 ASST. TOWN ATTY. CORCORAN: Well, hearing
what you have heard, what would you like this
19 Board to do, to rule or to wait?
MS . MESIANO: I would like to have this
20 Board wait for us to go to the Planning Board
because I do not want a negative decision without
21 the opportunity to be heard by the Planning Board.
BOARD MEMBER WEISMAN: And you will be
22 presenting this?
MS. MESIANO: I will be presenting that.
23 BOARD MEMBER WEISMAN: The contours for
the proposed berm, by the way, do not seem to be
24 indicated on here; is that correct?
MS . MESIANO: That' s correct.
25 BOARD MEMBER WEISMAN: So this is just the
topo.
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2 MS. MESIANO: This is just the topo. It' s
the tightest, smallest thing we can do.
3 BOARD MEMBER WEISMAN: I just wanted to
make sure I wasn' t missing the berm you' re talking
4 about.
MS . MESIANO: No. We asked the surveyor
5 only for the as-built, as-is conditions .
CHAIRMAN DINIZIO: I would like to
6 entertain a motion that we leave this hearing open
with no date until the applicant can come back.
7 (See minutes for resolution. )
---------------7---------------------------------
8 CHAIRMAN DINIZIO: Next hearing is for
Edward Fergus. This is an application requesting
9 a variance under Section 280-18 (100-30A.3) based
on the Building Inspector' s May 31, 2006 notice of
10 disapproval concerning an application for a
building permit to build a single family dwelling
11 in a location less than the code-required 50 feet
from the rear lot line, at 1854 North Bayview
12 Road, Southold.
Jerry, that' s your hearing.
13 BOARD MEMBER GOEHRINGER: Mr. Anderson,
how are you today?
14 MR. ANDERSON: I'm well.
BOARD MEMBER GOEHRINGER: Tell me where we
15 are from where we left off the last time in a
relatively brief and concise way, particularly the
16 issues that concern the neighbor and those issues
that concern the variance application as it
17 appears, which is very simply a setback for --
MR. ANDERSON: What I handed up will
18 summarize my arguments today. What we have here
is we have a single-family dwelling with an
19 attached garage which will occupy 3, 000 square
feet, and this is to be placed on a lot at 63, 302,
20 and therefore it' s going to occupy approximately
eight and a half percent of lot area where 20
21 percent is required. It is a waterfront lot. And
as a result of that, the regulatory forces
22 including most particularly DEC and the Town
Trustees, forced the development of this house to
23 what would be the southeastern corner of the
property. The rear yard setback in this R40 zone
24 is 50 feet and because there' s an attached garage
to this house, it becomes part of the principal .
25 That detached garage is 25 .2 feet from the rear
lot line, so it is its attachment that triggers
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2 this variance. That is to say that if it were
detached, I would not need this variance.
3 The dwelling itself is a one-story
dwelling and the attached garage is attached at
4 the request of the applicants, Mr. and Mrs .
Fergus, who are here today. Also here in support
5 of the application is Mr. Tuttle, who is our
engineer. We have actually had two engineers
6 working on this. The Ferguses are older in years
and particularly Mr. Fergus has a great deal of
7 trouble walking. So he simply wants to be able to
park a car in his garage and walk from the garage
8 into the house through heated space, and in order
to do that it must be attached and because it' s
9 attached, I need a zoning variance from this
Board.
10 The last time we were here, which was in
November of last year, Heather Cusack representing
11 the Trustees came in and informed of a survey
discrepancy which amounted to two cubic yards of
12 fill placed on top of a septic area, the septic
tank, specifically. The actual fill was beyond
13 the 100 feet from the wetlands boundary, but
nevertheless, you requested that we go back to the
14 Trustees . The Trustees had mentioned or Heather
had mentioned that there was a runoff concern with
15 that. So we reengineered our survey, which is
attached to our information package. We increased
16 the store run by placing a French drain around the
perimeter of the property away from the wetlands,
17 went in and secured an amendment to a permit, and
that occurred in January. The neighbors who are
18 also here, the Lanes, in objection, objected to
that amendment and demanded a rehearing, which
19 took place in February. February 14th the
Trustees reaffirmed the amendment they had granted
20 in January. In addition to that, one thing I did
notice in your file, you have an LWRP form. I
21 want you to know it' s identical to the form
addressed by the Trustees. So the LWRP matters
22 have been resolved in this matter. I invite you
and I request that that Trustee file, however it
23 may be useful, may be considered part of this
application because it now contains three
24 approvals from the Trustees.
Now, the final concern was raised by
25 Leslie, and that had to do with the potential
flooding of the basement. The contractor, who is
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2 also here, had stated that when they install sump
pumps quite often -- and we reengineered the plan
3 for that. So there are two sump pumps located in
a basement which sump pumps are piped into two
4 leaching pools or dry wells in the event there' s a
flooding in the basement. We also went back to
5 Mr. Tuttle to determine what the actual risks of
the flooding of the basement were, and
6 Mr. Tuttle -- and I have given you a letter in my
package that the risks of flooding are actually
7 minimal . So that' s what we have here.
Throughout this process, I feel the
8 Ferguses have been just harassed by their
neighbors, the Lanes, and they have objected at
9 every step of the way, and it took me awhile to
understand why, and I finally did by reading one
10 of the letters that they put in which bears the
name Property Angels and contains a website and
11 then it all became very clear to me. What we have
next door from the Lanes is really a group rental
12 hotel commercial enterprise and yes, Ruth, even
you could live there and stay there for $4, 500 a
13 month -- a week in high season. Credit cards are
accepted. They will finance your stay, they will
14 pick you up, they will even rent a boat for you to
park at the dock. This is not something that
15 would impact -- as I thought initially -- we were
impacting someone' s home that they were living in.
16 They actually live in Wagon Wheel Lane in
Cutchogue, where Property Angels, a commercial
17 business, is operated in that home, which is in a
residential zone. I have supplied you all that
18 proof in the memo before you.
Now, because we are next to a group
19 rental, the concern it appears to me is that
income might be lost. I don' t think that it is
20 this Board' s job to guarantee someone' s group
rental income. And I can tell you that you also
21 have in your files a letter from a Peter Bochavich
in support of the application, who writes : "I am
22 told the Lanes object to the Fergus development of
the property for several reasons for which I
23 disagree. I believe the Lanes do not have an
accurate basis on which to base their objection,
24 and do not actually reside on their property. "
Which is true. "It is seemingly occupied by
25 short-term transient renters, who are less than
respectful of our quiet and family-oriented
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2 community. During the summer months especially
there are numerous cars parked on the property and
3 street and frequently loud parties and bothersome
dogs barking. I have looked at the survey and the
4 plans of the Fergus planned retirement home and
believe it to be an asset to our neighborhood. I
5 understand the Fergus family plans to make this
property their primary residence" -- which they do
6 plan to do so -- "and expect they will be
respectful of the neighbors and their properties .
7 The house seems entirely reasonable, a valuable
addition to our neighborhood as I am sure Dorothea
8 and Edward Fergus will be themselves . "
So I understand now what dilemma and why
9 we have had such resistance we have here. You
know these group rentals are not something that
10 this Board should be protecting in its
determination. We have not had a chance to
11 express what this has done, what this opposition
has done to our application in every step of the
12 way in front of every regulatory board, but the
difference here is that we come to you and the
13 Ferguses have gone to every regulatory authority
with jurisdiction over this matter with clean
14 hands and they said, I want to build this house.
And every regulatory committee, the Trustees have
15 done it three times, have approved this house.
They appeared for over two years and they should
16 not be having these problems here. This
application should be approved because the
17 practical hardship is obvious . It' s a waterfront
lot. He' s constrained to placing it against the
18 property line. He wants an attached garage
because he wants to be able to walk from his
19 garage into his house through a heated space. The
area it occupies doesn' t exceed any coverage
20 restriction, and it is a one floor house, why,
because the man has trouble walking. So see he' s
21 building his house laterally. If I came to you
with a house half the size being two floors, the
22 end result would be the same, a practical hardship
is the age and the condition of the client and the
23 environmental constraints placed on the site, and
for that reason this application should be
24 granted. Thank you.
CHAIRMAN DINIZIO: Okay. Jerry, do you
25 have any questions?
BOARD MEMBER GOEHRINGER: Mr. Anderson,
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2 you sat down rather quickly. What are we going to
do about this Saratoga Associates?
3 MR. ANDERSON: The Saratoga Associates
letter was just handed to me. It has absolutely
4 no bearing on this application, but I can address
it very quickly for you.
5 BOARD MEMBER GOEHRINGER: The only thing,
one of the things that' s mentioned in here is the
6 issue of at least some sort of buffering from the
garage to the property line. Regardless of how
7 people use their property, that' s their business
and I understand your opinion regarding that.
8 MR. ANDERSON: The Ferguses have said that
they would put up a fence, they would landscape,
9 they' re completely flexible on that point.
BOARD MEMBER GOEHRINGER: I am keeping
10 this strictly to this variance application and I'm
I'm going to leave it at that situation. I'm
11 going to ask you to supply the Board with an
opinion regarding the Saratoga Associates
12 comments, who are property owners and have
standing in this application as property owners,
13 in my opinion.
BOARD MEMBER WEISMAN: Right next door?
14 BOARD MEMBER GOEHRINGER: Yes.
MR. ANDERSON: In writing I assume?
15 BOARD MEMBER GOEHRINGER: Yes . I'm asking
you to do that. I'm not asking you to do that
16 today, it' s not necessary, you just received it,
just as you gave us that nice little packet you
17 just gave us, within the next two weeks or so;
would that be okay?
18 MR. ANDERSON: That' s perfectly
acceptable.
19 CHAIRMAN DINIZIO: Stay there, Bruce.
Leslie, do you have any questions?
20 BOARD MEMBER WEISMAN: Actually there was
one question simply to get some geographic bearing
21 in doing the site visit because there are brambles
even though paths are cut through. It' s a little
22 difficult to actually determine where the corners
are, you can see where the property lines are but
23 it' s a little difficult to see where the stakes
are part of the house.
24 MR. ANDERSON: Did you see the aerial
photographs with the paths and the directional
25 arrows?
BOARD MEMBER WEISMAN: Yes.
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2 MR. ANDERSON: I don' t know if we can do
any better than that.
3 BOARD MEMBER WEISMAN: No, I don' t think
you can, I'm not asking for that. There is a kind
4 of a boat dock and steps right on the water' s
edge.
5 MR. ANDERSON: Right.
BOARD MEMBER WEISMAN: I want
6 clarification, is that on the Ferguses' property
or is that on the neighbor' s property.
7 MR. ANDERSON: The Ferguses have a
permitted dock on their property.
8 BOARD MEMBER WEISMAN: That' s what I
thought, yes . It just helps me get their bearing.
9 I just wanted to know if that was on their
property.
10 BOARD MEMBER WEISMAN: All right, that' s
all I have.
11 CHAIRMAN DINIZIO: Leslie, I know you had
some questions concerning the sump pumps, I was
12 wondering if you were satisfied?
BOARD MEMBER WEISMAN: Well, I need to
13 review additional information. You vocalized it,
I presume there' s some information.
14 MR. ANDERSON: That' s fine, I' ll have two
weeks to write a letter too. That' s fine.
15 BOARD MEMBER WEISMAN: Pardon?
MR. ANDERSON: We' re going to leave it
16 open for some time, I imagine.
CHAIRMAN DINIZIO: We may, we may not.
17 MR. ANDERSON: I would like the
opportunity to address that letter and two weeks
18 would seem reasonable for me to do that.
CHAIRMAN DINIZIO: We won' t take testimony
19 in two weeks unless it' s going to be in writing.
MR. ANDERSON: That' s what I would be
20 doing.
BOARD MEMBER WEISMAN: If you could just
21 simply put in writing the information you just
stated about the sump pumps and the dry wells,
22 that' s not in the current information we have, or
is it someplace?
23 MR. ANDERSON: It' s specified. You want
to know how big the sump pump energy is and
24 everything.
CHAIRMAN DINIZIO: No, is it in this
25 packet?
MR. ANDERSON: Oh, yeah, it shows the
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2 location of the sump pump and the dry wells.
BOARD MEMBER WEISMAN: Okay, then I just
3 need to read it. Just as you need to read this
and respond and we now have the data from you.
4 MR. ANDERSON: I wrote you that as to
shorten my presentation. I have been accused of
5 being long-winded in the past.
CHAIRMAN DINIZIO: Yeah, you are. Hold
6 on, Bruce, stay right there.
BOARD MEMBER WEISMAN: I am simply saying
7 there' s a message in here stating to be read into
the hearing on 3/29/07 .
8 BOARD SECY. KOWALSKI : It doesn' t need to
be read.
9 CHAIRMAN DINIZIO: It doesn' t need to be
read unless you want to read it.
10 BOARD MEMBER WEISMAN: I read it earlier.
CHAIRMAN DINIZIO: Michael?
11 BOARD MEMBER SIMON: I reread the
transcript from the original hearing back in what
12 was it, December, November, and I am quite happy,
looking forward to reading this packet and to
13 reading it more closely, I just got a hold of it,
the letter from Saratoga Associates and also your
14 reply, and I believe I have no questions assuming
that those materials will be forwarded in due
15 course so we can review them at our meeting on the
19th of April.
16 MR. ANDERSON: Thank you, sir.
BOARD MEMBER WEISMAN: Can I ask another
17 question? The survey indicates that your lot is
63 , 302 square feet.
18 MR. ANDERSON: Correct.
BOARD MEMBER WEISMAN: Can you tell me
19 what percentage is under water or in wetlands?
MR. ANDERSON: Well, the area of wetlands
20 is 3 , 300 square feet, so if you deduct that you' re
talking about half of the property.
21 MR. ANDERSON: No, 3 , 300 versus
63 , 000 . So it' s a tiny, tiny amount.
22 BOARD MEMBER SIMON: Less than 10 percent,
five percent.
23 BOARD MEMBER WEISMAN: About five percent.
MR. ANDERSON: If you were to subtract out
24 the wetlands, the coverage goes from about eight
and a half percent to nine percent.
25 BOARD MEMBER WEISMAN: Okay. It' s a very
large lot, I realize that.
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2 MR. ANDERSON: That' s correct.
BOARD MEMBER WEISMAN: But we' re in
3 discussion about what is a buildable area as
opposed to lands underwater, because there are
4 many properties that have --
MR. ANDERSON: Well, for a purpose of the
5 subdivision you would subtract out the wetlands .
BOARD MEMBER WEISMAN: Correct. Many
6 people are building very large houses on what
appear to be small pieces of property when in fact
7 their property according to deed is maybe seven or
eight acres because a good deal of it is wetlands,
8 so it appears smaller, that is not the case here.
MR. ANDERSON: You have to keep in mind,
9 we are pushed into this corner of the property to
maximize those wetlands setback. If I were to
10 take this and just center it on this property, I
wouldn' t be here.
11 BOARD MEMBER WEISMAN: You wouldn' t need a
variance, I understand.
12 MR. ANDERSON: If I were to detach the
garage, I could build a detached garage 20 feet
13 from the side and rear lot line as of right, and I
wouldn' t need a variance; it' s connection that
14 causes my problem.
BOARD MEMBER WEISMAN: Okay.
15 MR. ANDERSON: Thank you.
CHAIRMAN DINIZIO: Bruce, stay there.
16 BOARD MEMBER OLIVA: The right of way is
being included in your buildable land.
17 MR. ANDERSON: It' s included in lot area.
We' re not proposing to put the house in the right
18 of way, and it' s not a right of way, it' s a flag
lot. They have fee title to that. It is part of
19 the lot. It' s not a right of way.
CHAIRMAN DINIZIO: I have a couple of
20 questions, I just want to clarify some things
here. Bruce, I know we have been friends, but I
21 still have to ask these questions . I want some
clarification. If you detach this garage under
22 the new code, accessory code, you could build a
garage how big, just approximately? Could you
23 build a three-car garage?
MR. ANDERSON: On lots over 60, 000 square
24 feet, no accessory building shall exceed three
percent of the total size of the parcel. So I
25 could build a garage three percent of 63, 000,
that' s a darn big garage.
March 29 , 2007
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2 CHAIRMAN DINIZIO: So it' s fairly large,
basically 21 feet high, 20 feet -- 22 .
3 MR. ANDERSON: You could put it closer to
the rear lot line than what we' re proposing.
4 CHAIRMAN DINIZIO: If we did not grant
this variance, how much less of a house would you
5 have?
MR. ANDERSON: I could still build the
6 same house, I could build a larger house.
CHAIRMAN DINIZIO: Without needing a
7 variance?
MR. ANDERSON: Yes .
8 CHAIRMAN DINIZIO: So, what are you going
to lose a bay, two bays?
9 MR. ANDERSON: No, because we' re crowded
so much into the corner there, I lose the whole
10 garage because of its attachment, because the
garage, I believe is 24 feet wide, it' s 25 .2 feet
11 from the rear lot line, so when you net exact 50
feet back from the rear lot line, you lose the
12 whole shooting match.
CHAIRMAN DINIZIO: Okay. I just want to
13 be clear on that. We' re talking about the need
for a variance that you could do something else on
14 that piece of property and gain about the same?
MR. ANDERSON: Totally, I said why don' t
15 you build a detached and here' s the reason, the
man has trouble walking, and he wants to walk from
16 his garage into his house. This is going to be
their full time retirement home. They purchased
17 this lot in 1984 and had all kinds of troubles .
They have had kids die, but they have grand kids,
18 but they have some family left and we' re down to
an attachment between a garage and a house that
19 stands in the way of their dream.
CHAIRMAN DINIZIO: Okay. Do we need to
20 hear from Mr. Tuttle at all?
MR. ANDERSON: I don' t know. He' s very
21 eloquent and handsome.
CHAIRMAN DINIZIO: Do you have anything to
22 add?
MR. TUTTLE: Just if you have any
23 questions, that' s all.
CHAIRMAN DINIZIO: Well, we know that you
24 built the dock, Mr. Tuttle, and we know that you
built it according to all the standards in the
25 Town; is that correct? It' s not like this dock
was built illegally, or it was here before you
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1
2 followed all the permits?
MR. TUTTLE: No, in fact when we built the
3 dock originally, it went out straight and with the
Trustees' approval, then all of a sudden one of
4 the neighbors came over, hey, although it' s very,
very wide there, maybe 3 or 4, 000 feet wide, when
5 they originally developed the area they came
through and they trenched a channel right close to
6 the shoreline, and if you go out 60, 70 feet out
from where the uplands is, then you' re in the real
7 shallow water. But there was a trench built there
and I didn' t realize it, and we were in the middle
8 of the trench and blocking all the traffic from
going through. So instead of going out
9 perpendicular, we took it and put it parallel to
the shore.
10 CHAIRMAN DINIZIO: And that' s all
approved, approved by all the agencies that need
11 to do those sorts of things, right?
MR. TUTTLE: I haven' t heard from them
12 yet.
CHAIRMAN DINIZIO: Is there anyone else
13 that would wish to speak for this application?
MR. HILL: My name is Ronnie Hill and I'm
14 with RLH Land Planning Services. I'm here on
behalf of the Lanes, Dennis and Joanna. They
15 initially came to me asking for assistance in
determining the impact of storm water runoff as a
16 result of the construction in the proposed
development of the property adjacent to
17 them. That property is in fact the Fergus
property. Just to be clear, from what they have
18 told me, and I have no other reason to believe
otherwise, and I have heard the comments that were
19 made by Mr. Anderson, the Lanes' primary concern
is the impact of storm water as a result of the
20 Fergus construction on their property and on Goose
Creek. And I will repeat that again. Their
21 primary concern is the actual impact of storm
water runoff as it results to the Fergus
22 construction on their property and on Goose
Creek. They' re asking that a thorough analysis be
23 done to guarantee to the extent possible that
there is no long term impacts as a result of that
24 construction. They are not opposed to the Fergus
development of their property. Again, I will
25 repeat that, they are not opposed to that
development.
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2 You may remember on November 30th of last
year that Joanna Lane spoke with respect to some
3 particular issues at the public hearing. She
expressed her concern regarding those issues and
4 the primary issue was a thorough and consistent
review among all involved agencies. To summarize,
5 basically what she spoke about was in fact the
scope of the project, the discrepancies and
6 changes of documents that had been submitted for
review. A grading plan to determine what the
7 final grade of the plan would be and to determine
what and where the storm water runoff would flow.
8 She discussed and mentioned things about the
self-created hardship, adverse effects of the
9 physical and environmental conditions of the
neighborhood. The difficulty in meeting the
10 requirements of the Southold Town code. RLH Land
Planning Services is not a hydrologist or drainage
11 expert, we are a land planning firm. We agreed,
being myself, Joanna Lane and Dennis Lane, that a
12 thorough analysis of a detailed grading and
drainage plan could help to bring their mind to
13 rest with respect to the issue of storm water
runoff . Therefore, I ask on behalf of the Lanes,
14 Paul Boyce, who is with P.W. Grosser,
Incorporated, P.W. Grosser is a civil engineering
15 company which specializes in water resources,
sanitary issues hydrogeological and civil site
16 engineering. Paul Boyce is here today and will
speak regarding issues pertaining to drainage at
17 the Lane' s property. That should be at least
considered if not fully analyzed. I have another
18 portion of this that I would like to add but I' ll
wait until after Paul speaks.
19 CHAIRMAN DINIZIO: Could I just ask you a
question?
20 MR. HILL: Sure.
CHAIRMAN DINIZIO: We' re here because they
21 need a variance of about 25 feet of this and I am
wondering if you could just hold your testimony to
22 the effects of that.
MR. HILL: Well, I think it' s within that
23 context that I do speak, and that has to do that
the construction is ordinarily -- the setback
24 would be 50 feet from the rear yard setback. They
- are here because of the variance and as part of
25 that variance and as part of what I believe the
actual Zoning Board of Appeals has to consider is
March 29, 2007
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1
2 in fact of the construction and the storm water
runoff as a result of it.
3 CHAIRMAN DINIZIO: No. We are to consider
the setback. Okay. We have a very small part of
4 this building that we' re considering.
MR. HILL: I understand that but still the
5 issue becomes the construction itself, the impact
on the adjacent --
6 CHAIRMAN DINIZIO: But sir, we are not
determining the construction, neither are we
7 determining the size of this house with the
exception of this small part of the garage that
8 needs a variance. So I'm wondering because it
would be clearer to me if we vote for or against
9 this, if we know the impact of exactly what it is
that we are granting. The rest of the property,
10 the rest of the house, quite honestly, is not of
my concern. So any drainage or any nondrainage
11 problem that that may cause is probably the
purview of another agency, if at all, more than
12 likely the Building Inspector. But I won' t hold
you to that. So I would like to hear, if you have
13 a problem, I want you to address specifically what
we are here for today, which is a variance that
14 concerns a garage that has no basement, that is
approximately how many square feet of this
15 building; do you know, Bruce?
MR. ANDERSON: You mean of the garage?
16 CHAIRMAN DINIZIO: Yes .
MR. ANDERSON: The garage is approximately
17 650 square feet.
CHAIRMAN DINIZIO: Okay, and the house is?
18 MR. ANDERSON: The house would be
including decks, porches and everything, I'm going
19 to say 4, 350, something like that.
CHAIRMAN DINIZIO: So we' re looking at
20 maybe about 15 percent of that house?
MR. HILL: I understand.
21 CHAIRMAN DINIZIO: Fifteen percent of the
coverage that is a concern with this lot. So, if
22 you' re going to address us on that, it' s only my
opinion, sir, other people may have other
23 opinions, and I offer to have them speak on that.
But quite honestly, I have been reading all the
24 information that has come to us concerning this,
and I can' t see any of that that necessarily
25 addresses the application before us . I understand
all the questions. To my mind, those questions
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1
2 are better answered with other agencies if at
all . My assumption is that there' s a lot of
3 things that they can do drainage-wise that the
state code covers and as long as they meet those
4 codes, okay, as long as they have not been turned
down for those codes, or they' re not asking us for
5 a variance from those codes -- I'm talking about
drainage and whatever else, because we don' t grant
6 drainage variances, sir, quite honestly. So I
would hope that your expert will address the
7 application before us. Does anyone else wish to
comment on that?
8 BOARD MEMBER WEISMAN: Yes, simply in
fairness of due process, one of our considerations
9 in granting this variance has to do with impacts
on the environment and the character of the
10 neighborhood and neighboring properties and to the
extent that granting a variance of 25 or 26 feet
11 may have an adverse environmental impact I would
like to hear testimony from all those concerned.
12 BOARD MEMBER SIMON: Can I add a point, if
the issue is, as Jim said, a 25 foot variance in
13 order to have an attached garage, if the variance
is rejected then the house will be built and there
14 will be a garage in some other place on the lot.
So it' s not clear how we can generate a drainage
15 problem on the basis of this application since
whatever the outcome of this variance proceeding,
16 it isn' t going to effect those kinds of concerns .
CHAIRMAN DINIZIO: Right. Anything in our
17 control, Michael?
BOARD MEMBER SIMON: Right, anything in
18 our control .
CHAIRMAN DINIZIO: Ruth, do you have
19 anything you want to comment on?
BOARD MEMBER OLIVA: No, but I wouldn' t
20 mind hearing it, though.
MR. HILL: I understand that and I ask you
21 to consider one thing, you are quite right with
respect to the fact that it is in fact the
22 variance that is of the utmost importance and
within your purview. Yes, under normal
23 circumstances, it would normally need a 50 foot
setback. They' re here from that asking for
24 something less than that 50 feet.
CHAIRMAN DINIZIO: No, that is the
25 reason.
MR. HILL: That is the reason why they' re
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1
2 here. It' s still construction and the
construction of it being so close that as a result
3 of that it will have some impact, that impact
being the generation of storm water runoff .
4 CHAIRMAN DINIZIO: I agree, sir, but I
want you to address it for the amount of the 600
5 square feet as opposed to the 4, 000 square feet.
MR. HILL: We were not trying to limit it
6 to any portion --
CHAIRMAN DINIZIO: I am, sir. I am asking
7 you to limit your testimony to what is relevant to
this hearing.
8 MR. HILL: Fair enough, and I believe Paul
Boyce will do that.
9 CHAIRMAN DINIZIO: So any quantities I
want to hear with respect to less than eight
10 percent I suppose it is; but that eight percent or
10 percent, whatever it is of coverage that is
11 affected by us granting a variance.
BOARD SECY. KOWALSKI : 650 square feet.
12 CHAIRMAN DINIZIO: 650 square feet. The
rest of it, sir, is not relevant to this . So, if
13 he feels that he can do that without having me
interrupt him every few minutes because I'm going
14 to ask them to divide it by that percentage, then
by all means, I don' t want to stop your --
15 MR. HILL: I understand and I can' t answer
that but I am asking you to hear him out. I' ll
16 ask him to see how he will answer those questions
for you.
17 CHAIRMAN DINIZIO: Okay.
MR. BOYCE: Members of the Board, thank
18 you, I will try to confine it to just the drainage
issue. My name is Paul Boyce, I'm a civil
19 engineer retained by the Lanes and I work for P.W.
Grosser Consulting.
20 The applicant is proposing to install a
French drain along partial boundary between the
21 two properties. We were privileged to take a look
at some of the design calculations of that and
22 it' s based on retaining a two inch rainfall over a
certain area. I looked into those calculations
23 briefly and the French drain it' s basically a
trench with gravel in it. It was sized to capture
24 the two inches over that area. However, what it
didn' t account for was the gravel in the
25 trench. So it' s got storage or retainage capacity
for the two inches of rain we' re talking about.
March 29, 2007
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2 But once you put the gravel in there, it occupies
about 60 to 70 percent of the trench, so then
3 you' re really left with 30 or 40 percent capacity
to capture runoff from the site that is
4 potentially making its way to the Lanes'
property.
5 CHAIRMAN DINIZIO: Could I just ask you a
question about that?
6 MR. BOYCE: Sure.
CHAIRMAN DINIZIO: Is a French drain, is
7 its purpose to store water?
MR. BOYCE: It' s not to store.
8 CHAIRMAN DINIZIO: So, why would the
gravel have anything to do with it?
9 MR. BOYCE: It' s sized to retain a certain
capacity then infiltrate, allow it to percolate
10 into the subsurface, but it' s got to be sized for
a certain storm event. So it' s got to have a
11 capacity.
CHAIRMAN DINIZIO: So what would that
12 capacity be for about 10 percent of the property?
MR. BOYCE: I don' t have that off the top
13 of my head. Again, and this wasn' t sized for the
entire property, and it was a specific catchment
14 or tributary area on the site, which they' re
suggesting the potential to runoff on to the
15 Lanes' property.
CHAIRMAN DINIZIO: What size?
16 MR. BOYCE: Based on the calculations I
was given or prepared, sealed by a Mr. Joseph
17 Fischetti, Professional Engineer, Mr. Metzgar,
Peconic Land Surveyors letterhead, it' s an area
18 about 7, 125 square feet.
CHAIRMAN DINIZIO: So, what is that, like
19 a low lying area?
MR. BOYCE: I'm assuming, I don' t have a
20 map.
CHAIRMAN DINIZIO: I'm assuming that' s why
21 the French drain' s there.
MR. BOYCE: I don' t have that off the top
22 of my head, and again, this wasn' t sized for the
entire property, it was specific catchment or
23 tributary area on the site, which would have the
potential -- or what they' re suggesting -- the
24 potential to run off on to the Lanes' property.
CHAIRMAN DINIZIO: What size?
25 MR. BOYCE: I'm assuming. Again, I don' t
have a map.
March 29, 2007
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2 CHAIRMAN DINIZIO: I'm assuming that' s why
the French drain' s there at the bottom of that 700
3 and something square feet?
MR. BOYCE: That' s what I would believe.
4 But like I said, it' s sized to retain or capture
that two inch runoff on that area based on a
5 certain runoff coefficient, and it makes no
mention of the gravel in the trench. Also,
6 typically when these things are designed, you want
to put a little factor safety into them because
7 over time you're going to have sediments and
debris or dirt and other things tend to wash into
8 that gravel and reduce its storage capacity as
well as its leaching effectiveness.
9 CHAIRMAN DINIZIO: Is it normal to
maintain these things?
10 MR. BOYCE: That' s another thing I was
going to bring up, there' s no mention of a
11 maintenance plan. You' re going to cut this gravel
trench between two pieces of property, then what
12 happens; who is going to keep an eye on it; who is
going to fix it when you have a problem; how do
13 you even know you have a problem before it' s too
late?
14 CHAIRMAN DINIZIO: Who is responsible for
that?
15 MR. BOYCE: I would assume it would be the
applicant or the person installing it.
16 CHAIRMAN DINIZIO: So, why would they need
a plan if the assumption is that the homeowner is
17 going to maintain that?
MR. BOYCE: Again, I'm just assuming. If
18 there were something in writing based on visual
observations or inspections or groundwater level
19 readings or something along those lines that they
can maintain it. Maintenance of these things
20 typically involves removing the gravel that' s been
silted up and replacing it. So there' s some cost
21 associated with it.
The other issue with the French drain is
22 we know we' re in a low lying area with poor soils
and not very good drainage characteristics . We
23 have an existing soil boring from Mr. Metzgar' s
survey from 1989 which indicates we have sand and
24 clay sand and bog material, all of which doesn' t
have a very good permeability. On this French
25 drain it' s a shallow structure. It' s right at the
surface. The depth of the water looks like about
March 29, 2007
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1
2 five feet, but through that soil column you've got
that poor draining material. So what is going to
3 happen when you put this stuff a foot and a half
into the ground; where is it going to go? It' s
4 going to go someplace but it' s going to go very
slowly. So what you' re going to do is create this
5 artificial groundwater mound. Has anyone
considered the effects of that? Again, we' re just
6 asking these questions.
Also in terms of how is the site going to
7 be covered? I see we have gravel driveways, hard
surfaces, are there going to be other types of
8 vegetation or turf, things like that that effect
runoff coefficients? How much water would be able
9 to leach into the surface as opposed to how much
is going to run off. We see they used a . 3
10 coefficient, which is generally associated with
like a turf or some sort of hard soil type
11 surface. Again, there' s no mention or plan that
shows that. Then some of the roof drains on the
12 site which also affect drainage, and as I
mentioned, there was groundwater recharge
13 mounds . The sanitary plan that' s proposed here
around the leaching pools, which I assume was
14 approved by the Health Department, I don' t know,
it shows sand collars or sand drains beneath the
15 pools . What those are are basically you go down
to the .bottom of the leaching pool and you
16 excavate clean -- you excavate beyond that pool
elevation down to leaching material or suitable
17 sand, and then you backfill that with clean
material that' s going to be able to be readily
18 leached. Same thing I would assume would have to
apply for the roof drains, yet I don' t know what
19 is proposed in terms of their construction. So,
how are these things going to leach? Where is the
20 water going to go again?
In terms of the groundwater, we have a
21 boring from 1989; was this the historic
groundwater level; do we know? Has anyone
22 searched, has anyone looked? Again, we' re just
asking flow direction as well. Which way is the
23 groundwater flowing; is it flowing toward the
water; is it flowing toward the Lanes' property;
24 is it flowing towards the applicant' s property?
We don' t know that will have bearing on which way
25 the water' s going -- if it' s going on relatively
impervious material, clay, sand, it' s going to
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1
2 want to move horizontally because it' s not going
to go too far vertically.
3 In conjunction with that, we know we' re on
Goose Creek, Southold Harbor. It' s tidally
4 influenced, that' s going to have bearing on water
levels as well . Does anyone know about high water
5 levels, low water levels, where those are, where
they're established? That' s going to have bearing
6 on the drainage as well .
The site topography, we've got some
7 partial surveys or plans that show some contours
and spot elevations, but nothing is conclusive
8 between the two properties that show which way is
the water going to flow, which direction, how
9 much; how do we establish these tributaries areas,
watersheds, whatever you want to call it, as to
10 where water' s going to head. I think that' s one
of the biggest things that should be developed
11 before any decisions were made with respect to
drainage.
12 Lastly, I noticed some cut/fill type of
volumes . The application that went not to you
13 guys but to the Board of Trustees has a question;
does the excavation involve cutting and filling;
14 it was answered yes. Next question was if yes,
how much material will be excavated. It indicates
15 over 7, 000 cubic yards. That' s a lot of
material. If you' re talking about a 5, 000 square
16 foot footprint approximate to the building with an
eight foot basement, that' s about 40, 000 cubic
17 feet. That' s less than --
CHAIRMAN DINIZIO: Can you do me a favor,
18 can you tell me how this pertains to this garage?
MR. BOYCE: It pertains to the drainage.
19 CHAIRMAN DINIZIO: Which is what I'm
talking about. How does your testimony bear any
20 resemblance -- and it must some way, but you' re
going to have to tell me what it is -- to the
21 garage variance, the application that' s before us .
I understand that there is no basement in this
22 garage so that would be out of your calculations .
MR. BOYCE: As far as the garage goes,
23 yes .
CHAIRMAN DINIZIO: So I need from you
24 maybe not necessarily a hard number but an
estimate as to how much, if we granted this
25 variance, worse would it be?
MR. BOYCE: In terms of runoff?
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2 CHAIRMAN DINIZIO: What more detriment
would we be adding if we granted this variance to
3 your client' s property.
MR. BOYCE: Again, just asking for
4 additional information so that a thorough analysis
can be done.
5 CHAIRMAN DINIZIO: Sir, you' re the expert.
MR. BOYCE: I don' t have all the
6 information to give you an answer.
CHAIRMAN DINIZIO: You have a garage that
7 doesn' t have a basement. So you stated something
about digging a basement, excavating.
8 MR. BOYCE: That' s right.
CHAIRMAN DINIZIO: There' s not a lot of
9 excavating. We' re relying on you to give us
information concerning this addition that' s going
10 to be on that needs a variance. The rest of the
house, the rest of the property, quite honestly,
11 you have to convince me that if we added this
garage on to the house and instead of allowing the
12 person to build a much larger structure without
the need for a variance, which would mean you
13 would not be before us, you would have to go find
someplace else to go. Quite honestly, we are
14 concerned about that garage.
MR. BOYCE: I understand.
15 CHAIRMAN DINIZIO: I understand the
sand -- I don' t understand it, quite honestly, I'm
16 not an engineer. You've got to convince me,
though if we granted a variance we would somehow
17 or what is the percentage that increases the
detrimental part to your client? Can you give me
18 that?
MR. BOYCE: Not off the top of my head,
19 not like I said, if I had most of this information
that I asked or questioned where is it, do we have
20 it, can we get it, yeah, I can probably get you an
answer.
21 CHAIRMAN DINIZIO: What is that?
MR. BOYCE: Yes, I just ran through.
22 CHAIRMAN DINIZIO: Quite honestly, you can
get that from your client, they' re on the same
23 piece of property. The water that falls on their
property is the same direction it flows on this
24 property. They' re right next to each other.
MR. BOYCE: If you're familiar with the
25 groundwater divide, I simply don' t know.
CHAIRMAN DINIZIO: Your testimony concerns
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2 this whole lot, and we're not concerned about this
whole lot. We're not concerned about the water
3 flow or the house even. We're concerned about 600
square feet on this land without a basement.
4 BOARD MEMBER WEISMAN: May I make a
suggestion? We have permitted Mr. Anderson to
5 have some time to address information he just
received, during that same time period perhaps he
6 would be able to obtain what us necessary in order
to answer Jim' s questions and permit that
7 information?
CHAIRMAN DINIZIO: Sure, two weeks, break
8 it out for us.
MR. ANDERSON: May I make a suggestion?
9 CHAIRMAN DINIZIO: Yes.
MR. ANDERSON: I have given you
10 information on the Lanes' property which is
directly next door. They share the same property
11 line where this French drain goes . They haven' t
spent one nickel on a runoff trough. Runoff goes
12 directly onto a splash pad over the lawn into the
creek. For such concern over drainage -- and I
13 want to hear about groundwater divides because
that' s ridiculous, but if that' s the concern what
14 is to preclude the Lanes from installing some
drainage? They have no drainage control, and
15 they' re on a waterfront property; why are we
talking about this?
16 CHAIRMAN DINIZIO: I think I have
expressed, and I'm hoping the rest of the Board if
17 they want will express that although you gave us
some nice information, I think probably it' s not
18 pertinent to this application unless you can break
it down to the percentage that we need that would
19 be useful to us . Are you finished?
MR. BOYCE: One last issue, and I' ll try
20 to break it down to percentage-wise if it applies,
but it really was to the whole site --
21 MR. HILL: Just to conclude, what I would
like to say is we recognize that the Board is here
22 to grant their variance request or relief for
variance --
23 CHAIRMAN DINIZIO: No, sir. We' re here to
hear the hearing and make a decision. We' re not
24 here to grant a variance.
MR. HILL: They' re asking for relief from
25 Southold Town Code in that the setback is only 50
feet and they' re asking for less than that.
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2 That' s the only thing that I'm saying and that
given the same circumstances what we' re asking is
i 3 not so much trying to answer any question other
than the one that' s important to you, and if it' s
4 just about the garage and it' s proximity to the
Lanes' property line, then I think Miss Weisman
5 gave what I think would be equitable for us, give
us time to go back, given the information that' s
6 been submitted, allow us the opportunity to do as
you have done in any other circumstance, to
7 evaluate it and see if we can answer your
questions . That' s all the Lanes want.
8 CHAIRMAN DINIZIO: You gave us an
evaluation, and quite honestly, you just need to
9 break it down now to the relevant.
MR. HILL: But we can' t answer that right
10 now because --
BOARD MEMBER WEISMAN: How much time would
11 you need?
MR. HILL: I'm not sure. I can' t answer
12 that.
BOARD MEMBER SIMON: What we need beyond
13 what Miss Weisman asked for not just simply you
provide lots and lots of information, but lots of
14 information which will be relevant to the narrower
question, and that' s a much smaller task than
15 doing a thorough study of doing storm water runoff
for this parcel .
16 MR. HILL: We were never by any means
trying to suggest that we wanted to do a complete
17 storm water runoff of detailed grading and
drainage plan for that entire property. We were
18 only concerned about that portion of it as it
abuts up to the Lanes' property. So with respect
19 to that, yes, we will voluntarily go off and do
our very best and do our diligence to try and
20 provide our information to you, but what' s
required for us to do that is in fact certain
21 data, for instance topographic contours at certain
intervals that is absolutely mandatory. It could
22 be mandatory for the entire property, but it is
certainly mandatory for that portion of the
23 property where the garage is going to be
constructed, and it abuts or is adjacent to the
24 Lanes' property. Otherwise we can' t answer the
questions of where the water is going to go, how
25 it' s going to percolate. I think that' s fair. So
I thank you for having suggested that, Miss
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2 Weisman, and I hope the rest of the Board is in
agreement with it, and we' ll go back and try to do
3 the best that we can to provide you, Mr. Dinizio,
with an answer to your question
4 MR. ANDERSON: The topography has been on
the survey for two years .
5 CHAIRMAN DINIZIO: You can make the
decision based on the record, and what has ever
6 been submitted and let us know.
MR. HILL: I understand and I just want to
7 make sure that it' s thoroughly clear, from my
perspective and I believe from the Lanes'
8 perspective, they' re not here to try and deter the
Ferguses from constructing or developing their
9 property. That they' re trying to do is get a
reasonable answer to a very simple question. And
10 that is what are the likely, if any, long term
impacts of the construction with respect to storm
11 water runoff onto their property and on to Goose
Creek. Simple, that is it.
12 CHAIRMAN DINIZIO: And I think you' re
absolutely right in what you' re asking for and
13 you' re at the right place with respect to about 11
percent of that building.
14 MR. HILL: I agree.
CHAIRMAN DINIZIO: So we' re making a
15 decision based on that 11 percent.
MR. HILL: That' s correct.
16 CHAIRMAN DINIZIO: We also want to take
into consideration that they could cover much more
17 of that lot legally without being before us .
MR. HILL: And to that I would say to you,
18 Mr. Dinizio, if that were the case, it would even
more so to have some type of evaluation at the
19 impact of that construction.
CHAIRMAN DINIZIO: It would not be before
20 this Board, sir. We wouldn' t be making that
decision based on that is what I'm saying. We' re
21 looking at a plot plan, not necessarily where the
water runs to. That' s someone else' s purview. If
22 you want to give us testimony that you think is
going to be deleterious to your client that the
23 additional 11 or 12 percent that we may approve or
disapproval is going to be a detriment to your
24 client' s property, fine, just give us those
numbers, we need the numbers .
25 MR. HILL: I have agreed.
CHAIRMAN DINIZIO: It seems to me that you
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2 have gotten plenty of information and the record
holds enough information for you to give us an
3 answer based on that. If you don' t think that it
does, then let us know what it is that we can
4 legally ask for. We can' t ask you to go onto
their property. They don' t have to let you go on
5 their property. We don' t base our information
necessarily on contours. We have a map that has
6 contours on it. Just give us based on what the
applicant is asking for.
7 MR. HILL: Fair enough and I understand
that. But I would like to ask you a question:
8 Where then should we start when it comes to
matters of construction that ultimately have
9 consequence onto adjacent property owners? We
seem to be faced with -- and especially in
10 Southold Town -- the issue of containment of storm
water on site. So where does it begin, where does
11 it start? Not here. I'm not an expert. So I
don' t know. I don' t know if the Building
12 Inspector takes care of that, or the Planning
Board. Then we get into this vicious cycle.
13 CHAIRMAN DINIZIO: Yes, but it' s not --
MR. HILL: I understand. So we' re going
14 to go back and do the best that we can. We' re
going to do the best that we can based on the
15 information that we have. We' re going to try and
answer your question, but I would also like to
16 make sure you understand that if it' s necessary to
have additional information, and it may be two
17 foot contours versus the spot elevation and the
contours that are currently on any other maps that
18 the Board has reviewed.
CHAIRMAN DINIZIO: Well, I for one, sir,
19 would not require that of the applicant. But we
vote as a Board, and if you come before us in two
20 weeks and ask for that, because I'm assuming that
we' re going to have this information, my
21 assumption was we were going to close this hearing
today.
22 BOARD MEMBER SIMON: Subject to receiving
this information.
23 CHAIRMAN DINIZIO: Right, I know, we' re
going to close this hearing. He' s going to hand
24 us the stuff in writing, and we' re going to make
our decision.
25 MR. ANDERSON: That' s acceptable.
CHAIRMAN DINIZIO: Okay. So I want to be
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2 clear on that, sir, what you hand us is going to
be what we make our decision on.
3 BOARD SECY. KOWALSKI : I have a question
then procedurally, then they don' t get to rebut it
4 in writing?
MR. ANDERSON: I don' t care.
5 BOARD SECY. KOWALSKI: You' re waiving
that?
6 MR. ANDERSON: That' s fine.
CHAIRMAN DINIZIO: It' s pretty much, we
7 had testimony on what you wanted to present and we
just want you to present it. I personally just
8 want you to present it as it relates to the amount
of relief we can grant.
9 MR. HILL: It is clear to me, Mr. Dinizio,
that our focus is strictly the garage. I have no
10 doubt that I'm going to walk away from this podium
understanding that.
11 CHAIRMAN DINIZIO: Okay, thank you. Is
there anyone else who wishes to speak for or
12 against this application?
MR. ST. PIERRE: My name is Joseph St.
13 Pierre. I'm the property owner to the south on
the other side of the creek. One matter with
14 regard to the drains in the basement, my property
is considerable higher than their property and on
15 an easterly wind, when the water is forced into
the creek, we get an extremely high tide and my
16 property being higher, I get water in my basement.
So I think they definitely got a problem there.
17 The only other question I had was in
regard to this recent letter that was evidently
18 sent to the Board from some adjoining property
owners, this would be reviewable at the office or?
19 BOARD MEMBER WEISMAN: Yes . It' s public
record.
20 BOARD SECY. KOWALSKI : It' s part of the
file.
21 MR. ST. PIERRE: All right, that' s all I
have to say, thank you.
22 CHAIRMAN DINIZIO: Anybody else?
MS . HEALY: I'm Harriet Healy, 580 Goose
23 Creek Lane. I'm also the neighbor on the south,
same block as Mr. St. Pierre, and we' re basically
24 here for the environment. We would all like to
know where this water' s running, whether it' s just
25 from the garage, wherever it' s going to be going
into the creek and we'd like to know what you' re
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2 going to do about it. I'm sorry, I'm very sick of
hearing it' s not the issue, that' s not the issue
3 here. I don' t think you can turn a blind eye to
this . This is one of the last bits of remaining
4 property on this creek. Cornell Cooperative
Extension' s there, SPAT' s there, everybody enjoys
5 the creek, everybody goes clamming, so it is an
issue. It' s very easy to sit there and snicker
6 like this is a big joke, and I think it' s rude, I
really do. I think this should be considered and
7 if no one will speak for the creek, I mean, what
is this world coming to? It' s not just the
8 Lanes' , I feel for them, but what about the creek?
Where is this water going to go? I think it
9 should be addressed not just swept away or take a
break or fall asleep. Thank you.
10 CHAIRMAN DINIZIO: Anybody else wish to
speak for or against this application?
11 MR. HEALY: My name is Mike Healy,
Harriet' s husband. I second everything she said.
12 I also would like to say that despite the quite
amicable relationship that Mr. Anderson has with
13 the Board here, I find that, Mr. Dinizio, you
almost argue his point on some respects when you
14 make a statement as to why wouldn' t it be any
different on the Lanes' property as far as the
15 where the water runs, we all know where the water
runs . I live next door where the water runs
16 differently on my property than it does to
theirs . I find it highly insulting that you sit
17 up there and you make an argument. You' re
supposed to be neutral, better than neutral,
18 you' re supposed to be sitting up there watching
out for all our good will .
19 CHAIRMAN DINIZIO: May I answer you?
MR. HEALY: Yes, please.
20 CHAIRMAN DINIZIO: Sir, I am up here to
answer, to ask questions, okay.
21 MR. HEALY: You didn' t ask a question
Mr. Dinizio, you made a statement about the way
22 the water runs off on their perspective properties
without any knowledge, that is arguing his case.
23 Why are you arguing his case? That' s all I want
to know.
24 CHAIRMAN DINIZIO: Would you like me to
answer you?
25 MR. HEALY: I want to know how, why this
got to this point, I can' t understand. I know
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2 this is way outside of the purview of what this
meeting is about.
3 CHAIRMAN DINIZIO: It certainly is.
MR. HEALY: But I can' t understand how a
4 5, 000 square foot home is being built on that
piece of property, but that' s out of your purview,
5 I understand.
CHAIRMAN DINIZIO: It isn' t, sir, quite
6 honestly. The Zoning Board right here is a very
narrow point. We have a very narrow mission
7 here. That is to consider relief from the zoning
code. The Town Board creates that code. They
8 create the setback. They create how high a house
can be, how wide a house can be, what lots a house
9 can be built on. What lots can be built on, the
criteria. We have nothing at all to do with that
10 part --
MR. HEALY: I'm not questioning that; I'm
11 questioning your attitude about this particular
case and the way you seem to be arguing. And I
12 want to tell you is something else, I happen to
have spoke to two people who spoke to
13 Mr. Anderson, and I'm probably out of line for
saying this, but he mentioned to them, wait until
14 you get a load of the house that' s being built
across the way from you. That sounded to me like
15 he wasn' t saying, you're going to love it.
CHAIRMAN DINIZIO: I understand. Listen,
16 I understand your frustration, quite honestly, I
do, sir. When I have an expert in front of me and
17 that expert makes a statement, I'm going to
question that, sir. I'm going to say here --
18 MR. HEALY: You didn' t question, you made
a statement. Don' t give me that you questioned.
19 You made a statement. You made a statement you
don' t have anything to back it up on. You said
20 the water runs the same way, he' s got a
neighboring property. You don' t know that.
21 CHAIRMAN DINIZIO: No, I don' t know that.
MR. HEALY: So to me you didn' t like the
22 answer so, quite frankly, I think that' s something
that should be outside those two doors right
23 there. When you want to be pals with your pal,
fine, but don' t bring it in here. It doesn' t sit
24 well with the people sitting here, maybe it might
sit well with those people over there who snicker
25 and tell the witnesses over here to sit down for
everybody to here. That might sit well, but it' s
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2 not the right way to do things in this room.
CHAIRMAN DINIZIO: I take your opinion
3 under advisement. I certainly do that, sir, I
would hope that you wouldn' t see me trying to
4 defend his point of view.
MR. HEALY: I did.
5 CHAIRMAN DINIZIO: My whole reason for the
questioning that I did, and you notice that I did
6 it mostly was that I need to focus people on
exactly what we are here for. What we have been
7 advertised for.
MR. HEALY: I understand that, you made
8 that quite clear
CHAIRMAN DINIZIO: Right.
9 MR. HEALY: And then you stepped outside.
CHAIRMAN DINIZIO: When an expert, an
10 expert who he had before us, makes a statement
about something, and I don' t understand it, it' s
11 my duty to say to him, look, why doesn' t the water
flow this way, what is it. And you know what, I
12 never got an answer?
MR. HEALY: You didn' t state it as a
13 question, you stated it as a fact.
CHAIRMAN DINIZIO: No, sir. That will all
14 be part of the record. My statements are
questioned in and of themselves . I have no
15 expertise whatsoever in which way a water will
flow in the ground, okay, I only make assumptions
16 that if I have two lots alongside each other that
somehow they have to be interconnected.
17 AUDIENCE MEMBER: No.
MR. HEALY: Thank you.
18 CHAIRMAN DINIZIO: Well, then, give me the
testimony, we had an expert.
19 MR. HEALY: Don' t sit up there and make
somebody' s case one way or the other.
20 CHAIRMAN DINIZIO: I was asking him to
explain that to me.
21 MR. HEALY: Don' t sit there as a member of
the Zoning Board and take it all in and make your
22 decision in a neutral way. What is the best in
this town?
23 CHAIRMAN DINIZIO: Well, listen that' s
what we' re trying to do here.
24 BOARD MEMBER WEISMAN: Can I simply assure
you that this is not the place to deliberate. We
25 will be deliberating and you are invited to attend
that open meeting contingent upon receipt of
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1
2 information. You can call the office and find out
when that deliberation, which is open to the
3 public, will take place and you are invited to
attend. The purpose here is to hear testimony
4 without bias and completely as possible.
MR. HEALY: I think that should be shown.
5 BOARD MEMBER WEISMAN: We are taking in
all testimony today. We will receive additional
6 testimony, all of those things including those
things previously submitted will be thoroughly
7 evaluated and we as a Board will deliberate among
ourselves on the merits as we understand them
8 based upon all oral and will written testimony.
That' s a public record and you have every right to
9 examine it. You need to call the office. So,
what took place here today is a small fraction of
10 what will be on going in the way of conclusion and
recommendation.
11 CHAIRMAN DINIZIO: Does anyone else have
anything to contribute to this application? Miss
12 Lane?
MS . LANE: Good afternoon, Joanna Lane,
13 owner of the property. I will be brief . I just
wanted to -- I'm not speaking for myself here, I'm
14 speaking for Mr. William Kuhl, I believe you were
discussing his letter earlier and he did ask me to
15 read it out on his behalf . So I just want to
establish whether I can do that or you don' t need
16 it.
CHAIRMAN DINIZIO: You' re welcome to read
17 it.
MS . LANE: This is from Mr. William Kuhl
18 who is the senior principal and vice-president of
Saratoga Associates, which is a professional
19 corporation of landscape architects, architects,
engineers and planners. It' s addressed to "Dear
20 Chairman Dinizio: Unfortunately because of prior
commitments I cannot attend tomorrow' s hearing
21 concerning Mr. Fergus' s request for a rear yard
setback variance. I delegate authority to Mr. and
22 Mrs . Dennis Lane to speak on my behalf in my
absence and to insure my concerns are entered into
23 the record.
"As owners of 1790 North Bayview, which
24 abuts the property in question, neither my wife
nor I are opposed to a home of appropriate scale
25 and sensitivity being constructed as long as it is
responsive to the existing site conditions .
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2 However, the current proposed size and lay out
causes us great concern for a number of reasons .
3 "The major concerns are as follows : The
fact that the existing grade has to be raised to
4 accommodate the proposed septic field is a serious
issue. I am aware that the reason the grade is
5 being raised is because of the presence of a clay
strata located four foot below the existing grade
6 and approximately eight foot of that subpervious
soil is needed for the septic field to function.
7 However, raising the grade to provide the needed
depth in this case doesn' t necessarily address
8 several critical issues.
"The coarse, sandy nature of the existing
9 soil may actually have a very high percolation
rate. Perk rates of less than five minutes are
10 considered too fast to provide adequate treatment.
This will reduce the chance for the natural
11 systems in the soil to properly remediate the
effluent before it reaches the underlying clay.
12 The clay will prevent the effluent from reaching
the underground water table, but the effluent will
13 then have to flow horizontally into Goose Creek
adversely impacting the water quality. Has a
14 percolation rate study been done? Are there
calculations taken into consideration, taken into
15 consideration the worst case scenario of the
potential load being generated that the septic
16 system will have to handle from a house of
approximately 5, 400 square feet?
17 "I also have concerns about the accuracy
of the existing contours being shown on the
18 survey, it shows a contour of nine foot as the
high point. We had to obtain a survey of our own
19 related to obtaining flood insurance requested by
our bank. We received a map of the flood zone and
20 the Fergus property was all below the grades of
our property, which has its highest elevation a
21 little more than elevation eight foot. I would
like the information on the survey verified as it
22 has implications on storm water runoff and the
amount of fill needed for the septic fields .
23 "In addition to the concern about the
septic fields and the potential pollution
24 generated from it, the need to raise the existing
grade has serious implications on both the
25 existing vegetation and storm water runoff. Based
on the survey and the very schematic grading shown
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2 to accommodate the fill needed between the
increased size of the house from its earlier
3 approximately 2,400 square foot size, the site
will be basically cleared of all vegetation
4 outside the buffer area. This action will have a
very negative impact on the site' s overall
5 aesthetic character and more importantly it will
be a major negative impact on the abutting Lane
6 property and ours as well . More critically it
will significantly alter the existing drainage
7 patterns. Compounding this pattern is the reduced
waterfront setback for which a variance was
8 granted. This means that the steeper grade will
increase the velocity at which storm water flows
9 and with a buffer by 50 percent of the removal of
most if not all existing vegetation beyond the
10 buffer, there is a very real probability that
there will be increased surface runoff entering
11 into the creek containing pollutants such as
fertilizer, oil, residues, et cetera.
12 "Also if the variance is granted for the
20 foot rear yard setback, it will provide
13 insufficient space for the French drain to
function. The proposed French drain will have
14 limited to no impact on controlling surface
runoff . The raised elevation will cause water to
15 run off at high velocity and it will flow right
over the drain along the property line into the
16 Lanes' property before any water can have a chance
to percolate down into the French drain system.
17 Only a French drain will have some major impacts
on controlling the runoff based on the current
18 layout and grading. However, this would be
aesthetically very unappealing.
19 "In addition, why is there no requirement
for a rear yard buffer landscape treatment? There
20 will be absolutely no visual impediment between
the Lanes and the new house when it is
21 constructed. I would ask, have members of the
Zoning Board physically gone to the site to see
22 this firsthand? The potential impacts the
proposed building of this size will have on the
23 site itself and the abutting properties, have the
various Boards coordinated their actions findings
24 with each other to assure that there has been
consistency in the material submitted for
25 consideration to each Board to confirm decisions
are being rendered on the same materials
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1
2 throughout the process for the various approvals
being sought?
3 "I would also like to go on the record
stating I don' t believe my wife and I have been
4 properly notified of all the meetings that have
taken place regarding this application. Has DEC
5 been notified of the increased house size and the
need to raise the existing grade to accommodate
6 the septic fields and its potential impact on the
creek? Has the Cornell Extension Service been
7 notified of this project and the potential adverse
impact it could have on their scallop nursery
8 located right around the corner from this
property? Have the visual impacts of the proposed
9 new home been analyzed regarding potential
obstruction of views? Has a study been done to
10 determine whether there are endangered species
nesting in the reduced setback area, such as the
11 piping plover? Many birds have been observed by
me personally using this area for nesting.
12 "In closing, I would like to again restate
my wife and I are not opposed to a new house being
13 built on the Fergus property; however, the
proposed structure under consideration is
14 inappropriate in size and scale in relation to the
existing character of the site. To accommodate
15 this application, the existing site has to be
totally manipulated and as a result posing severe
16 adverse environmental impacts on the adjoining
property owners, the Lanes, and the walls and on
17 Goose Creek itself : We adamantly oppose that any
further variances be granted until all the
18 outstanding issues in this letter and the issues
raised by Mr. and Mrs . Lane are adequately
19 addressed, and we are sure that all the various
boards have based their decisions based on the
20 same materials . Respectfully, William B. Kuhl,
Senior, Principal, Vice-President Saratoga
21 Associates . "
MS . LANE: I would just like to add a
22 little bit to that in reference to the questions
that I posed at the last November hearing; when am
23 I going to get answers to those?
CHAIRMAN DINIZIO: I don' t believe, and I
24 could be wrong, that we are the ones to give you
those answers, quite honestly. We don' t
25 investigate, we' re not experts on drainage, we' re
not experts on even some of the things that were
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2 mentioned there.
MS. LANE: That was Mr. Kuhl' s questions,
3 sorry, I was asking with reference to my questions
from November.
4 CHAIRMAN DINIZIO: Right. I personally, I
didn' t think they had relevance to the application
5 before us .
MS . LANE: Well, a turnaround for
6 emergency vehicles is not relevant to this
application?
7 CHAIRMAN DINIZIO: No, ma'am, because the
house can be built unto itself, therefore it
8 wouldn' t be relevant.
MS . LANE: Isn' t the location of the
9 garage relevant to that?
CHAIRMAN DINIZIO: Only if we grant the
10 variance.
MS. LANE: If you don' t grant the
11 variance, he' s going to put a detached garage but
it' s still relevant, isn' t it?
12 CHAIRMAN DINIZIO: Then he can have it.
Then the turnaround, the fire department, anybody
13 else has to deal with whatever the applicant puts
on there. Whatever the Building Inspector gives
14 him the CO for. That' s only my opinion, and
certainly there' s four other members on this Board
15 that could take that information and feel that
it' s very relevant.
16 MS . LANE: So then in regard to the
discrepancies in the survey that we highlighted in
17 terms of the discrepancies between our respective
surveys, that' s not relevant to you to establish
18 where the actual boundary line is between us?
CHAIRMAN DINIZIO: Only to the point where
19 a building permit will be approved.
MS . LANE: So when you' re inspecting the
20 property you don' t need to know where the boundary
line is to our property?
21 BOARD MEMBER SIMON: These are relevant
but the question you' re raising, when we read
22 these letters, all of us do, and we find them
relevant or we assess their relevance, and we all
23 make inspections, yes, we do. It has not been the
practice, that I know of or even other agencies,
24 to manifest our concern with their relevance by
writing specific replies to the people who send
25 the letters . We find them quite relevant.
CHAIRMAN DINIZIO: Thank you, Michael .
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2 BOARD MEMBER SIMON: We' re not running for
office as congressmen would. They have people to
3 write answers to all of your letters for their own
reasons.
4 MS . LANE: It' s just that you asked
Mr. Anderson to respond to them and I never
5 received that response.
CHAIRMAN DINIZIO: My question was about
6 sump pumps.
BOARD MEMBER WEISMAN: That was one thing
7 that we requested. I believe Mr. Anderson did
address that in his earlier testimony about
8 appearing before the Trustees and taking care of
some of the discrepancies.
9 MS . LANE: He didn' t answer the questions
in my letter in his earlier testimony.
10 BOARD MEMBER WEISMAN: You pointed out a
series of discrepancies on surveys and wondered
11 were we as the Zoning Board looking at the same
survey that the Trustees were looking at.
12 MS. LANE: I pointed out discrepancies
between our respective surveys, his survey and my
13 survey don' t agree.
BOARD MEMBER WEISMAN: Right. Well, I
14 believe that Mr. Anderson was made aware of that
point at the November hearing and that he has
15 addressed that in front of the Trustees and that
we are now looking at the same survey; is that not
16 true?
MR. ANDERSON: No. The answer is, we
17 addressed it right after she raised it, and it
appears in your minutes, and the answer is that we
18 hired a licensed surveyor, who surveyed the
property and his stamp is affixed on that survey
19 as being accurate. If there is some boundary
dispute, that' s not before this Board.
20 What I did often, because this is not
uncommon that dates of surveys vary, the erosion
21 or accretion on land will vary a distance, a stake
to the high water mark, which is what all these
22 deeds reference, they reference a high water mark,
which is subject to interpretation, some degree of
23 erosion, some degree of accretion because high
water lines move, that' s how we addressed it. I
24 think that' s a good response, frankly.
BOARD MEMBER WEISMAN: Didn' t you say
25 earlier that you corrected survey discrepancies of
two cubic yards of fill? You went to an engineer,
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2 then you went into the Trustees in January, then
you reappeared before the Trustees to get an
3 amendment in February again because of objections
made in January, and in all cases there was the
4 inconsistency was then resolved by the Trustees .
MR. ANDERSON: Yes, this has been reviewed
5 by the Trustees three times.
BOARD MEMBER WEISMAN: Did you attend,
6 Miss Lane, any of those hearings before the
Trustees?
7 MS . LANE: The first one with the notice
was sent out for a time of 7 : 00 and the hearing
8 was held at 6 : 30, so that' s why we asked it will
be held again, then we were indeed allowed to make
9 comments at that hearing, yes . But there was no
addressing, that wasn' t the venue for the
10 questions that the ZBA had asked Mr. Anderson to
respond to me on.
11 CHAIRMAN DINIZIO: But that' s the same
point here, ma' am. We have to rely on the
12 evidence that' s presented to us . If there' s a
dispute, we have an expert that affixed his stamp
13 to that. We have to take that as the testimony
before us . If you dispute that, there are other
14 avenues . Kieran, maybe you can help me with that,
maybe you would need to -- that' s not for me to
15 make the decision of whether your survey is right
or his .
16 MS. LANE: It' s not a question of
disputing it, it' s a question of clarifying the
17 facts . And I think we all want to do that because
you can make a decision based on the facts, but if
18 there' s some confusion about the facts, then how
can you make a decision? That' s the only reason
19 for me to ask all these questions that
Mr. Anderson was supposed to answer to me.
20 BOARD MEMBER WEISMAN: Excuse me, let me
just finish my conversation or query.
21 Mr. Anderson was asked to make responses to
questions raised at the previous hearing to us,
22 not to you. He has no obligation to reply to you.
If a point is raised and we request clarification
23 because he raised it, he must respond to us, that
is a public record that you can go to the ZBA
24 office and obtain. So any of the information that
you want in terms of clarification is available to
25 you that way.
MS . LANE: Okay.
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2 BOARD MEMBER WEISMAN: I have a question
for you. The letter that you just read into the
3 record from the other neighbor, Mr. Kuhl, was that
information presented in some form or another at
4 the hearings before the Trustees?
MS . LANE: No, not at all. Mr. Kuhl has
5 contacted me very recently in the last few days
and I can' t speak for him, but it' s my
6 understanding that this is his first involvement.
BOARD MEMBER WEISMAN: The issues raised
7 are compelling and important. The concern is that
the Trustees are meant to be stewards of the
8 environment, which does not abrogate our
responsibilities as citizens to also be stewards
9 of the environment. As a Zoning Board, we have
limited purview over many of the things that we
10 do. And there are some circumstances in which it
would be reasonable to expand some of those issues
11 that we consider, other times we can' t. So, all I
can say is that I believe that in good faith this
12 body will consider all evidence presented and
apply it to the variance before us. That' s all
13 really we can do, which is why I asked the
question about information the Trustees had. The
14 place to argue about environmental decisions,
those kind of impacts are before the Trustees .
15 That doesn' t mean we don' t consider environmental
impacts because one of our criteria is will the
16 variance have a negative effect on the character
of the neighborhood and detriment to the
17 environment. But it is not as sweeping as the
purview of the Trustees. So I just want to make
18 sure that the record reflects what we are
considering, and certainly, I' ll consider
19 everything that is presented at hearing, that' s
what we have to do. But I think it' s important
20 for you to understand that this kind of
information has a kind of focus, a process of in
21 terms of granting various setbacks and so on, and
we do have some strictures legally determined by
22 the state in terms of the things that we are
allowed to consider.
23 MS . LANE: I have something relevant to
the garage here.
24 ASST. TOWN ATTY. CORCORAN: Can I just
give you a point of information on the drainage
25 that may be of help? Two days ago, the Town Board
passed a storm water and drainage code, which is
March• 29, 2007
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1
2 very new for this town and it was intended to try
and fill the gap that people are talking about
3 here today that this Board has not traditionally
dealt with and other boards have not. In recent
4 years the Trustees have tried to address drainage
issues, and I believe they tried to address them
5 on this project maybe not to your satisfaction,
that law is not in effect yet, because I think it
6 needs to go to the Department of State, Secretary
of State, it needs to be received by them, it
7 needs to be stamped; that' s a matter of weeks . I
think if Mr. Hill' s drainage and the consultant' s
8 arguments about the drainage calculations that
have been done today are ready by the time this
9 law gets into effect, and they' re made available
to the Town engineer, who is going to be de facto
10 the person who signs off on whether particular
plans have adequate drainage, he can look at it
11 and see whether there' s a problem or not. And I
think he would probably be the most qualified
12 person at least that we have in the Town, that' s a
suggestion.
13 MR. ANDERSON: May I say this, for the
record, we stipulate to compliance with the draft
14 law adopted two days ago. Whether or not it' s
filed or whatever, we' ll stipulate to the draft
15 legislation.
ASST. TOWN ATTY. CORCORAN: In all
16 likelihood before you get before the Building
Department for a permit, it' s going to be in
17 effect but you' re really going to want to put your
arguments in front of people before it goes it
18 merry way.
CHAIRMAN DINIZIO: It certainly is here,
19 and all the information that you presented is
available to anyone that chooses, including Town
20 employees. And I just want to say that when I
first looked at this lot and I stood among the
21 phragmites and could not see anything but, my
first thought was for Ruth because I know how much
22 she feels for the environment. My first thought
was Ruth is not going to like this at all, okay,
23 quite honestly, and it turned out I was right, but
even myself, I looked at it and said how can a
24 house be built here, this is right on the edge and
all of that. Then I did a little study myself, I
25 asked some people and I find out that phragmites
is an invasive species, they could be mowed down
March 29, 2007
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2 at will and nobody pretty much cares about it. I
always thought that they were part of our land,
3 then I find out that the land was filled, 100
years ago this didn' t exist this lot, but then I
4 found out that pretty much the whole developments
in town have been built on filled land, and it' s
5 not within my purview. I wish it was -- no, I
don' t. I don' t even want to make that decision,
6 the way I think would not probably be conducive to
anybody' s thinking. But quite honestly, I myself
7 have to abide by what we have before us . The
exact application has to be that. If not, then
8 it' s not fair to anybody and if I want my opinion
on what you gave us, it seemed to me like it was
9 an indictment more on the Trustees and how they
made their decision.
10 MS . LANE: Yes, right. You see --
CHAIRMAN DINIZIO: Right, and honestly,
11 ma' am, it seemed like you were asking us to be the
judge of their decision, we' re not that. We' re
12 just looking at a setback.
MS. LANE: I hear what you' re saying and I
13 understand what you' re saying, honestly, I do. I
would like to just say on the design of the
14 garage, that I don' t see why it has to have a
window overlooking my property wherever it' s
15 located. It' s for storage, the second story, and
you know, I don' t see why I have to give up my
16 privacy for that. I don' t see that it needs a
window facing directly into the interior of my
17 house.
CHAIRMAN DINIZIO: If someone looking from
18 there were to look into the garage, what would
they look at?
19 MS . LANE: The bedrooms. Into the master
bedroom, yes .
20 CHAIRMAN DINIZIO: Through your window?
MS. LANE: Through the bedroom window,
21 yes . It faces the house with the bedroom window,
so I would like for that to be eliminated from the
22 design, please. And I'm a little confused and
just want to clarify about this topographical map
23 because I myself couldn' t find one in my file, and
Mr. Boyce, who as you know, we engaged to give his
24 advice, was very insistent to give some actual
contours to give a really accurate, valued
25 opinion, and I'm aware that that exists, and I
just chatted with Mr. Hill now and he says that
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2 it' s not in the file. So it' s been around for two
years . Where is it ' cause I can' t find it.
3 MR. ANDERSON: They' re on the survey.
MS . LANE: There' s no topographical.
4 CHAIRMAN DINIZIO: Do you have a specific
criteria that it was? We really don' t look
5 necessarily at contours other than a spot
elevation.
6 MS . LANE: It has spot elevations but not
sufficient to consider drainage.
7 CHAIRMAN DINIZIO: Again, this goes to the
heart of your argument that someone in Town did
8 consider that based on something. Honestly, we' re
not qualified to do that. Again, I understand
9 your argument, ma'am, but your indictment is on a
Board that we have no expertise in that we have no
10 concern over. I don' t mean for that to be
heartless, we can' t judge what they do other than
11 they can judge.
MS. LANE: But it was your request for the
12 French drain to go in not the Trustees .
MR. ANDERSON: We will comply with the
13 Town' s drainage law.
BOARD MEMBER WEISMAN: This is the survey
14 that we got, is there any additional survey
submitted?
15 MR. ANDERSON: That is the survey and
we've given you a breakdown in my submission of
16 what every submission date, what occurred as far
as the changes, which is what you requested in
17 your November 15th meeting.
BOARD MEMBER WEISMAN: Well, this has a
18 lot of good information on it, but it does not
have contours on it. You have setback from the
19 flood zone line.
MS. LANE: The flood zone line is also --
20 BOARD MEMBER WEISMAN: You have building
envelope on it, you have hay bales defined on it.
21 Can you show me where there is a contour interval?
MR. ANDERSON: (Indicating. )
22 BOARD MEMBER WEISMAN: Those are the
proposed grades or the existing grades?
23 MR. ANDERSON: The land is so flat they
don' t show up.
24 BOARD MEMBER WEISMAN: They are called out
tandem then eight, you are doing them at two foot
25 but they' re absolutely negligible because of the
essentially flat terrain. It' s very poorly drawn,
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2 very minimal.
CHAIRMAN DINIZIO: Okay. Are you
3 satisfied?
BOARD MEMBER WEISMAN: I don' t think they
4 need to provide anything additional.
MR. LANE: Dennis Lane, right here, I have
5 the Town Code that actually calls for the two foot
intervals .
6 BOARD MEMBER WEISMAN: There' s two of them
on here.
7 MR. LANE: They' re not at two foot
intervals .
8 BOARD MEMBER WEISMAN: Yes, they are.
MR. LANE: May I see them, please?
9 BOARD MEMBER WEISMAN: Sure, very poorly
drawn. I don' t see that as a very well drawn
10 contour.
AUDIENCE MEMBER: It' s a pretty flat lot.
11 BOARD MEMBER WEISMAN: Which is why there
are not many intervals .
12 CHAIRMAN DINIZIO: Honestly, sir --
BOARD MEMBER WEISMAN: Well, just for the
13 record, they are rather unclear in terms of their
call out on this survey, but there are two contour
14 intervals on it.
MS . LANE: What we'd like is the proposed
15 as well as the existing, so, do we have the
proposed?
16 CHAIRMAN DINIZIO: That' s in their
package.
17 MS. LANE: What is the final grade of this
property in the boundary line with mine?
18 CHAIRMAN DINIZIO: I'm not an expert, but
you have one. Have him take a look at it.
19 BOARD MEMBER WEISMAN: I think the thing
for you to do is to come in and take a look at the
20 record with the new material submitted by
Mr. Anderson.
21 BOARD SECY. KOWALSKI: Well, he has it.
BOARD MEMBER WEISMAN: All right, then
22 your engineer has material submitted by
Mr. Anderson, and you are free to look that over
23 thoroughly and see what information' s available.
CHAIRMAN DINIZIO: Okay. Anybody else
24 wish to make a comment on this application?
Hearing none, I will entertain a motion to close
25 this hearing with only written testimony to be
presented from the applicant and from the
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2 neighbor' s expert, Mr. Boyce. We will make that
decision on the 19th.
3 BOARD SECY. KOWALSKI: Well, we have 62
days .
4 CHAIRMAN DINIZIO: We' ll start
deliberations on the 19th.
5 (See minutes for resolution. )
---------------------------------------------- ---
6 CHAIRMAN DINIZIO: Next hearing is for
Zupa. Michael, would you just read the appeal?
7 BOARD MEMBER SIMON: Mary Zupa. This is
an appeal for an interpretation or other action,
8 based on the Building Department' s December 21,
2006 return of a building permit application to
9 construct a single-family dwelling at 580 Basin
Road, Southold.
10 There was no statement of disapproval, and
just going back, what the ZBA found at its last
11 time it considered this, is we were asked to
consider a very narrow question having to do with
12 the interpretation of a particular clause within
the code independent of the merits of this
13 particular case. And it was felt that -- and the
question was whether the realignment of the dock,
14 whether that constitutes a change, and it' s
prohibited under that particular part of the code.
15 That is, and we held that -- and this is very far
from the immediate question -- we held that a dock
16 which has been rebuilt in a new place loses its
status, its legitimacy, once it has been destroyed
17 except under certain kinds of conditions, such as
when it is moved by the order of a legitimate
18 agency, in this case it was the Trustees . So when
this dock was moved at the behest of the Trustees,
19 then it does not render the dock illegitimate.
Now, the relevance of this to the Zupa
20 case --
CHAIRMAN DINIZIO: Michael, Kieran is
21 saying that we should allow the applicants to
explain their position and that we have heard the
22 hearings .
BOARD MEMBER SIMON: Okay, I won' t go over
23 that again.
CHAIRMAN DINIZIO: I know that was ,part of
24 what we discussed.
BOARD MEMBER SIMON: That' s fine.
25 ASST. TOWN ATTY. CORCORAN: Maybe once the
arguments, I think the parties will be able to
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2 make their arguments as best as anyone else.
BOARD MEMBER SIMON: Okay I'm happy with
3 that, fine.
MR. HENRY: My name is Patrick Henry, I'm
4 an attorney in Central Islip, and I represent the
Zupas on this application. Thank you very much
5 for hearing us today. Basically in 2004 this body
granted a variance on its own application or
6 motion on an application for a building permit
concerning the modest amount of square feet. And
7 you, this body, granted that variance. And you
also ruled that the building permit would be
8 forthcoming as soon as one of two things happened,
basically, the marina that allegedly coexists on
9 the property either be done away with or go away
or in the alternative, a new variance be granted
10 for coexistence of a marina and a private home of
the Zupas as they were seeking a permit for. And
11 until and unless something happened to change that
situation, there would be no building permit
12 forthcoming. We have maintained that after a lot
of litigation borne out of frustration I suppose
13 -- I wasn' t in the picture then -- and appearances
before other bodies, there has been two
14 significant changes . Primarily, the decision that
Mr. Simon was alluding to, which called for an
15 opinion of whether or not the nonconforming use
enjoyed by the association would be destroyed if
16 the docks were ordered to be removed were removed,
because they constituted the very essence of the
17 purpose and function of the nonconforming use, the
existence of those docks . If there were no
18 underlying docks, there would be no nonconforming
use.
19 Now, they were ordered removed by the
Trustees . Back in 2004, when our first initial
20 application was made, it was claimed by the
association that they owned and had title to the
21 bottom of the basin in question. Since then, it' s
been established beyond I think any doubt that the
22 Trustees are the sole title holders of the bottom
of that piece of water. Even the record, the deed
23 as I understand it was submitted for recording
indicating that the association owned it, when in
24 fact it was not so. In any event, it' s the
position of the Trustees, and we agree with them,
25 that they have sole title to the bottom. And this
body decided that the question of whether or not
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2 the zoning extended to the docks, which were under
the jurisdiction of the Board of Trustees, did
3 not, and therefore you don' t have jurisdiction
zoning-wise over the existing docks . And that
4 it' s up to the Board of Trustees to order their
destruction or existence or nonexistence or
5 whatever they choose to do about it as long as
there is no adverse impact on the environment.
6 And we are strongly in favor of that. My clients
are outstanding environmentalists and have devoted
7 a lot of their time to a lot of that long before
this issue ever arose.
8 So we are saying that the Zoning Board of
Appeals has held that the Board of Trustees has
9 sole jurisdiction over the docks . They wanted
them removed therefore there' s no nonconforming
10 use from your perspective, and if there' s no
nonconforming use, there is no marina. We
11 maintain, of course, there never was a marina,
it' s nothing more than a few docks where people
12 can tie up their boats . And if there' s no marina,
there' s no dual purpose use of the Zupas'
13 property, and there' s no impediment about issuing
a building permit.
14 Basically in a nutshell, I'm condensing it
in view of the hour, and parenthetically, let me
15 commend you on your patience, I'd be very pleased
to go back to referring to our original situs, and
16 point out to you the building plot that we
encompass, which is the basis of our application,
17 you already have that before you. If you want me
to, I will point out the boundaries on it and the
18 proposals . I kind of think you' re already
familiar with it.
19 CHAIRMAN DINIZIO: We are fairly familiar
with it, sir.
20 BOARD MEMBER GOEHRINGER: We' re down there
a lot.
21 BOARD MEMBER WEISMAN: A whole lot.
MR. HENRY: How did I know that? I would
22 also say that there had been some local objections
to the Zupas moving in. Some of it got a little
23 ugly. There were epitaphs exchanged. If I may
bore you with one incident, Mrs . Zupa was told to
24 go back to where she came from; and the irony of
that is that she comes from Southold. Her parents
25 are buried here as are many other relatives,
that' s the kind of indignities they had to put up
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2 with during this litigation.
CHAIRMAN DINIZIO: Sir, could I just ask
3 you to just speak to the relevant issues? I
understand the personal stuff but --
4 MR. HENRY: I'm just telling you that
emotions got introduced into the big picture on
5 both sides, and basically all the Zupas want is to
build their home within the confines of the
6 limitations that exist. We don' t object to a dock
for the association, the Zupas have even offered
7 to give a 75 foot parcel of land to them, give
them title to it and bulkhead it for them and
8 whatever else incidental they might need in that
regard to further this their enjoyment of the
9 basin as well.
ASST. TOWN ATTY. CORCORAN: May I ask,
10 have you made the application that you were
implicitly invited to make in the 2004 opinion of
11 this Board to seek a variance to allow the two
uses to coexist?
12 MR. HENRY: No, we did not. Because it' s
our perception that the association would have to
13 consent with or agree with it, with our
application for it to be granted.
14 ASST. TOWN ATTY. CORCORAN: What makes you
think that?
15 MR. HENRY: I think that' s an educated
guess .
16 BOARD MEMBER SIMON: May I ask a question?
It' s my understanding that the result of our 2006
17 decision that the Zupas' property is still
burdened by a preexisting use and we were not
18 deciding the question of marina versus dock or
even where it was, whether it was the bottom of
19 the bay or -- this is not what we were deciding,
but the outcome of this as I understand it was
20 that the encumbrance continued to exist when the
dock was moved and rebuilt because of the
21 Trustees . Therefore, the Zupas were in the
unenviable position of finding that their property
22 was still encumbered. And what I really want to
know, it wasn' t clear to me what we as a ZBA can
23 do about this . You make some interesting points
about who owns it and whether it was ever
24 encumbered, but what can we do; what are you
asking us to do? It looks as though we' re
25 supposed to find it not a nonconforming use so
that the Zupas can go ahead and build their house;
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2 do we have the power? I don' t understand.
CHAIRMAN DINIZIO: Hold on. Again, we
3 need to keep this on the application that' s before
us, on the published notice. And I think any
4 notion concerning a variance that might be granted
by this Board would be better --
5 BOARD MEMBER SIMON: I was merely
inquiring whether that was part of this
6 application or not because they are asking to do
that same thing, which is to build the house.
7 MR. HENRY: That' s all they ever wanted
all along, regardless of the litigation.
8 BOARD MEMBER SIMON: We' re being asked to
remove the encumbrance; is that the idea?
9 MR. HENRY: Essentially yes, and then the
alternative to not apply it to the area where they
10 want to build their own their home. It' s not
appropriate to encumber that specific property.
11 ASST. TOWN ATTY. CORCORAN: Didn' t the
original filing before the ZBA also ask in the
12 alternative for any variance that might be needed
to build the home; am I wrong? Did I not see that
13 in the application?
MR. HENRY: I don' t think that was
14 incorporated in it. Let me say this, that we' re
perfectly willing to request a variance.
15 BOARD MEMBER SIMON: I don' t think that we
have seen that application. It would be a highly
16 relevant application.
ASST. TOWN ATTY. CORCORAN: I saw it when
17 it was first filed, and it said that.
BOARD SECY. KOWALSKI : The
18 misunderstanding I think is which application, we
have had so many.
19 ASST. TOWN ATTY. CORCORAN: No, I mean
this one.
20 BOARD SECY. KOWALSKI : This particular
application had a lot of attachments to it.
21 MR. HENRY: Let me say this, whether or
not it was included, we will submit a variance
22 application. If it will make things easier for
this Board then by definition it would make things
23 easier for all of us .
BOARD MEMBER SIMON: I think that would
24 respond to our puzzlement about what exactly we
are being asked to do, whether we can in fact
25 decide that we do in fact have the authority to
accept or not accept an application for a
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2 variance. The problem is what we have today is
not an application for a variance. It' s
3 essentially a reapplication for what has been
litigated before.
4 MR. HENRY: Yes, but it' s our position
that one of the impediments is no longer in
5 existence, therefore we've come back.
BOARD MEMBER SIMON: Okay, I was looking
6 for evidence of that, and I haven' t found it.
I've seen arguments . I mean, the argument that
7 says it really was never an impediment in the
first place because it was Trustee property, that
8 would eliminate, it' s true, but this is new to me.
I haven' t been on the Board for more than two and
9 a half years or so. That would simplify things
too. I'm quite puzzled, and I do know something
10 about the law, and I can' t make sense of this.
MR. HENRY: Give me one moment.
11 MR. ZUPA: My name is Victor Zupa, as you
know, good afternoon, you're very patient, I
12 agree.
You made the change in 2006, September
13 2006, when you said the docks are on -- there' s a
nonconforming basin use, and it' s on the basin,
14 and therefore Section previous 241 now 280,
prohibiting certain things to be done with
15 nonconforming uses, i.e. rebuilding or relocating,
is not applicable. Well, if that' s the case, if
16 the nonconforming use, which you didn' t call a
marina and in minutes disclose that you' re careful
17 to say this is not a marina, that it was silly to
define it as such, it' s a community dock --
18 BOARD MEMBER SIMON: It' s a very good
point, but the thing was, I went to look over the
19 minutes and I wasn' t able to find that. It
doesn' t appear in the decision. I don' t know
20 whether it was a slip of the tongue or a mistake
or a misuse of a term in the minutes, because I
21 couldn' t find that portion of the minutes . I
don' t remember the Board ever officially deciding
22 something which may have been implied by what
actually appeared in the minutes.
23 MR. ZUPA: If you say there is a
nonconforming use on Mary' s property, on our
24 property, then you have to apply Section 280, pure
and simple as that. These docks, if you look at
25 the exhibit, their permit calls for them to be
relocated and rebuilt in their entirety. Here' s
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2 an existing dock, there' s the new dock I'm in.
It' s a whole new dock, it' s moved. That clearly
3 is prohibited by Section 280 .
BOARD MEMBER SIMON: Well, we gave an
4 interpretation which said that it' s not prohibited
by 280 .
5 MR. ZUPA: Yeah, but, because you said --
BOARD MEMBER SIMON: That' s what that
6 hearing was about. I mean, a lot of other things
happened during that hearing.
7 MR. ZUPA: Yeah, but if it' s not --
CHAIRMAN DINIZIO: Hold on.
8 MR. ZUPA: If it' s not covered by the
280 --
9 CHAIRMAN DINIZIO: Hold on, Mr. Zupa.
MR. ZUPA: Okay.
10 CHAIRMAN DINIZIO: I understand how
passionate you are about this because I don' t know
11 if you' re a lawyer or not but you' re sounding like
one.
12 ASST. TOWN ATTY. CORCORAN: Don' t
apologize for that.
13 CHAIRMAN DINIZIO: No, I apologize for
that. But I think you know more about this than
14 we do quite honestly. But we' re here today, I
just want to point us in the direction that it
15 seems we' re here today that you applied for a
building permit and the Building Inspector said,
16 no, I'm not going to give you a building permit,
and on top of that, I'm not going to give you a
17 disapproval; is that basically what happened? In
other words, you don' t have a notice of
18 disapproval?
MR. ZUPA: We don' t have an official
19 notice of disapproval. The way we interpret it,
so I explained to the Building Inspector, that
20 there' s the original decision in 2004 which says
there' s a marina use on the property,
21 nonconforming use, so either remove it and they
referenced a lawsuit, which is still ongoing, or
22 get a variance. And I applied to the Building
Inspector and said, look, here' s the first case
23 but now there' s a second case, you've got to
interpret this . The second case basically says
24 there' s no nonconforming use on Mary' s property.
If there were, you would have to say you cannot
25 relocate or rebuild that nonconforming use, but
you didn' t. You said essentially, the
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2 nonconforming use was on the basin.
BOARD MEMBER SIMON: Suppose we used the
3 wrong word. Because I'm not sure that that wasn' t
just simply the problem. It was the question of
4 whether the nonconforming use had become extinct
because they were rebuilding the dock, and we were
5 asked to interpret that question, either it was
rebuilt on another location, and we found in the
6 reading of the code that the code specifically
said that you did not lose your nonconforming
7 status if your move and rebuild of the dock was in
consequence of an order of the Board of Trustees .
8 So, therefore, the nonconforming use was still
continuing. Now, if you say that the minutes seem
9 to reveal that we reversed ourselves in things
that we said, that we really didn' t think there
10 was any nonconforming use after all, that' s
embarrassing at least because it looks like it
11 contradicts the decision when that we published
when we reached our decision after the whatever it
12 was, December 2006 meeting. That' s why I'm
confused. But in addition to that and maybe there
13 are other ways to get to the Board of Appeals, but
ordinarily, as you know as well as any of us, that
14 the way you get before the ZBA is to get a notice
of disapproval from the Building Department. And
15 if the Building Department doesn' t give a notice
of disapproval, I'm not sure what authority they
16 have is we' re not going to say, yes, we' re not
going to say, no, you take it up to the ZBA. And
17 that' s a very awkward situation for us to be in
because we don' t even know if we have
18 jurisdiction.
ASST. TOWN ATTY. CORCORAN: I will speak
19 quickly to that. What happened what would happen
then, if the Building Inspector refused to issue
20 anything to someone who made an application, they
would never have any recourse, the enabling
21 statutes allow this Board jurisdiction if what
they request is refused to be granted. So, they
22 are properly here. However, there is another
issue that another party' s brought up
23 jurisdictionally, which I would like to hear both
sides talk about, is whether as a basis of reis
24 judicato, which to those who don' t know means if
the issue' s already been decided, this Board can' t
25 hear it again. That to me is the relevant issue
of jurisdiction. I think had this already not
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2 been decided, yes, this Board does have
jurisdiction because relief was requested, a
3 permit was requested, it was in de facto denied.
So they have to have somewhere to go to appeal
4 that denial. The real question is, does this
Board have jurisdiction because we may be talking
5 about an issue that has already been talked about
at this level .
6 CHAIRMAN DINIZIO: Linda wants to make a
statement.
7 BOARD SECY. KOWALSKI: The Building
Inspector, when he had an application from
8 Mr. Zupa asked me whether it' s been resolved in
the courts and how should they proceed, and I told
9 them that I didn' t know the answer to that because
it' s in litigation, so much litigation, there' s
10 civil litigation, there' s town litigation, and I
had also referred them to again to speak with
11 counsel . So that' s probably why he refused to
process the building permit application. He knew
12 it was in litigation.
MR. ZUPA: Technically, the Building
13 Inspector cannot refuse to consider an
application. He can disapprove, that' s what the
14 law is. I treated it as a disapproval even though
basically he said, look, I'm giving you back your
15 card, it' s been decided. So I went ahead and
treated it as a disapproval and applied an appeal
16 to this Board based on his failure to interpret
the 2006 decision, which explicitly says the
17 nonconforming use is on the basin. Therefore, we
have no jurisdiction, 280A is not applicable.
18 Pure and simple. It changed. Previously, the
nonconforming use was on Mary' s property.
19 BOARD MEMBER SIMON: That was not the
issue that the ZBA considered.
20 MR. ZUPA: How can it be that in applying
for the building permit you tell the applicant the
21 nonconforming use is on your property, you can' t
have a building permit. And then when the
22 association comes back and says, well, I want to
rebuild the dock, does that opinion still apply to
23 it? Am I bound by that? And they say, Oh, no,
for the purposes of rebuilding, 280A is not
24 applicable, you can rebuild.
BOARD MEMBER SIMON: That' s a reasonable
25 argument, but I don' t know who made it. We didn' t
make it. I thought you were reporting that we had
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2 said you' re right --
BOARD MEMBER WEISMAN: No, we had not.
3 CHAIRMAN DINIZIO: We' re here today to
decide whether or not he can come back before us .
4 ASST. TOWN ATTY. CORCORAN: I think
respectfully, and this Board can decide what it
5 said, but I think its intention was not to say 280
or Section 241 is not applicable, I think what the
6 Board decided was it was not violated.
BOARD MEMBER SIMON: Yes. Yes, and what
7 you did was maybe our minutes contained something
to allow you to impute a certain interpretation to
8 us as though we had already made your argument for
you, which you are now making probably quite
9 persuasively. But we' re just spectators as far as
I can see.
10 MR. HENRY: May I please say something?
Nonconforming uses are not welcomed by the law.
11 The law does not like nonconforming uses basically
because it deprives someone who owns the property
12 a limited use of his own property through some
antiquated apparatus that happens to be there.
13 BOARD MEMBER SIMON: Right.
MR. HENRY: So, that is the reason
14 Southold and most other communities have a statute
that says that you can' t alter, extend reconstruct
15 or restore that apparatus constituting a
nonconforming use because then you could deny that
16 person a property forever and ever and ever just
by repairing whatever it is .
17 BOARD MEMBER SIMON: You can repair it,
you can' t tear it down and rebuild it.
18 MR. HENRY: It says you can' t repair it --
should not be enlarged, altered, extended,
19 reconstructed or restored or placed on a different
portion or lot parcel and so on and so forth.
20 ASST. TOWN ATTY. CORCORAN: We had this
argument last year.
21 CHAIRMAN DINIZIO: Yes, we had this
argument already. I mean, you' re absolutely
22 right.
MR. HENRY: I'm just saying that if this
23 were allowed to be an exception of some manmade
concept that I never heard of, why then you could
24 repair all these things forever and ever and ever
and very effectively deny the person the use of
25 his own property.
BOARD MEMBER SIMON: There' s a good reason
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2 for that part of the code.
MR. HENRY: Yes .
3 BOARD MEMBER SIMON: I agree.
MR. HENRY: Now, coupled with this Board' s
4 comment which says in your decision, particularly
since the alignment was at the request of an
5 independent board -- the Trustees -- with full
jurisdiction over the subject matter. Full
6 jurisdiction over the subject matter.
BOARD MEMBER SIMON: Well, that could mean
7 the Trustees have jurisdiction over anything
within 100 feet of the water.
8 MR. HENRY: Suppose you don' t agree with
them?
9 BOARD MEMBER SIMON: What?
MR. HENRY: Suppose you don' t agree with
10 their jurisdiction, a decision they make arising
from their jurisdiction?
11 BOARD MEMBER SIMON: You mean, if we say
that the Trustees do not have the jurisdiction
12 that they claim with the Andros Patens and all
that. I don' t know what you do with that, not a
13 lot. Because we disagree with the state law that
gives the Trustees whatever jurisdiction it has .
14 I don' t think we can.
MR. HENRY: I agree with you. It' s our
15 position that the Trustees have the authority as
owners of the bottom basin to do what they think
16 is appropriate for the people of Southold township
concerning docks and other structures and what
17 have you.
BOARD MEMBER SIMON: Right. They can do
18 it with personal docks and not marinas . They can
tell you you can' t build a dock. That' s their
19 jurisdiction.
MR. HENRY: I think that' s what we' re
20 really talking about.
BOARD MEMBER SIMON: There was a talk
21 about whether it was a marina or --
MR. HENRY: I think everyone pretty much
22 agrees it' s not a marina, it' s a community dock.
The nonconforming use is the key phrase here.
23 Should we allow the repair and removal and
reconstruction of a nonconforming use and that
24 flies in the face of any understanding and any
jurisdiction I can find.
25 BOARD MEMBER SIMON: That' s what our
interpretation was for.
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2 BOARD MEMBER WEISMAN: We already did that
and the point is we can' t -- there are no building
3 permits required for docks. So there was no
notice of disapproval for the ZBA for docks . The
4 Trustees came to us for an interpretation because
they wanted to reconfigure the docks, and our
5 previous decision essentially said you will not
lose your preexisting nonconformity if -- not a
6 private individual but rather the Trustees who
have jurisdiction over water bodies requires not
7 rebuilding inkind but relocating for the same use;
is that correct?
8 CHAIRMAN DINIZIO: No, that' s right. But
what' s the relevance of that?
9 BOARD MEMBER WEISMAN: To this
application. Now they're asking us to interpret
10 whether that decision eliminated a nonconforming
use on your property.
11 CHAIRMAN DINIZIO: Right. A restriction
of your property. Right? What are the
12 nonconformities? Well, it was nonconformity
because it had two uses on it, correct?
13 MR. HENRY: Yes.
CHAIRMAN DINIZIO: Now you' re saying to
14 us, it only has one use on it, it' s residential .
MR. HENRY: Well, one of the
15 nonconformities arose out of the existence of
those docks.
16 CHAIRMAN DINIZIO: Right.
BOARD MEMBER WEISMAN: But that will not
17 be changed. Those docks are going to still exist
in a different configuration, and they will still
18 be considered pre-existing nonconforming, even
though they have been rebuilt on a different
19 location; that is my understanding.
CHAIRMAN DINIZIO: Aren' t they saying to
20 us that, look, we made that decision, we said that
it doesn' t make much difference, and therefore,
21 your decision from before, which says you have two
uses that' s not 'conforming is no longer relevant;
22 is that --
ASST. TOWN ATTY. CORCORAN: That' s what
23 they' re saying, yes.
BOARD MEMBER WEISMAN: That' s what they' re
24 saying, that' s not what we said.
MR. HENRY: That' s an argument. You can' t
25 have it both ways.
CHAIRMAN DINIZIO: Right. So, what is the
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2 end product of that? What is your hope upon your
application today?
3 MR. HENRY: Our hope is that you will
agree that there is no nonconforming use on the
4 property; that they own, more specifically where
they want to build their home, and it' s not
5. incompatible. That' s all. We' re not out to do
away with the association or their boating
6 enjoyment or -- they' re even offering to give them
property with a dock on it, brand new boat
7 fitting. We're trying to be good neighbors . And
may I just make one more point?
8 CHAIRMAN DINIZIO: Yes.
MR. HENRY: And I think in this room as I
9 speak, everyone who owns lands on the basin is
here, and I think they are all here to say a good
10 word for the Zupas and their application.
CHAIRMAN DINIZIO: Well, we will certainly
11 hear what they have to say.
MR. ZUPA: On your question before about
12 the variance, I said well, look, and you' re
correct, we' re saying that the condition has been
13 removed. Why do we continue to litigate in court
as the ZBA acknowledged in 2004, removal of the
14 docks and continue all of this basically mooted
the condition. But if that doesn' t work, okay,
15 we' re applying for a variance. But I never said
we'd apply for a variance with the consent of the
16 association because that' s impossible.
ASST. TOWN ATTY. CORCORAN: I don' t know
17 that this Board required in its 2004 decision that
you come with the consent of the association.
18 MR. ZUPA: In the minutes of the last
meeting, Mr. Corcoran, you said, that, Jim, our
19 plan was that you would both come forth with an
application for a variance. And you said that to
20 me on another occasion. That would never, never
work. But in the sense of portion, if you don' t
21 agree that I haven' t been able to explain my
logic, I think you would say that 241G is
22 applicable to us, and 241A is not applicable.
CHAIRMAN DINIZIO: Let' s just clarify that
23 then, okay. We can move on. Your contention is
that you no longer have a nonconformity attached
24 to your lot?
MR. ZUPA: Correct.
25 CHAIRMAN DINIZIO: Basically. And you' re
saying to us that the reason for that is because
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2 of a decision we made, correct?
MR. ZUPA: Correct.
3 CHAIRMAN DINIZIO: Right?
MR. ZUPA: That' s a change of fact.
4 CHAIRMAN DINIZIO: Now we just need to
find now a way -- and I'm not speaking in
5 agreement with you but I'm just speaking so I can
get my thoughts out -- we need now to find a way
6 to get you a building permit to build a house; is
that basically what it comes down to?
7 MR. ZUPA: Correct.
CHAIRMAN DINIZIO: Your problem is that
8 you applied for a house, and the Building
Inspector wouldn' t make a decision based on the
9 litigation that' s going on -- I'm just saying that
he looked. He thought there were more problems of
10 just plain old you got a building lot, that you
can put a house on, that was his opinion, and he' s
11 welcome to his opinion, you don' t agree with it,
you' re before us .
12 MR. ZUPA: He actually cited the 2004
decision.
13 CHAIRMAN DINIZIO: Right. Okay, we need
now to find a course. Our duty now is to find a
14 course for them to follow?
ASST. TOWN ATTY. CORCORAN: Yes, I think
15 we should hear from --
CHAIRMAN DINIZIO: Now we' re going to go
16 over here --
BOARD MEMBER GOEHRINGER: Yes, but the
17 point in question here is where is the guarantee
for the docks and that' s the issue. We' re still
18 in litigation.
CHAIRMAN DINIZIO: Okay, let' s see what
19 goes on.
MR. PASCA: Anthony Pasca, I'm one of the
20 attorneys for the association.
There are two obvious decisions that we
21 have to talk about. The 104 decision and the 106
decision. In ' 04 you gave them two choices . You
22 said come in with a 241G application, which would
give a variance to the docks and make them no
23 longer nonconforming. If you give a variance to
the docks, they would become a conforming use;
24 therefore, you won' t have this problem of having
one nonconforming use and one conforming use on
25 the property. They have never in two and a half
years come to us and said, will you guys consent
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2 to this application? Do you think that we would
forego that opportunity to legalize these docks?
3 This is something that we want as well . So the
idea that it' s impossible for us to join in an
4 application, it' s not true; we've never been asked
to join in an application. I don' t think we can
5 make that application for the landowner because we
weren' t invited to the way you guys invited them
6 to make the application. But I can tell you, they
know that we're the lawyers and we have never been
7 asked to join in that application.
CHAIRMAN DINIZIO: Would you?
8 MR. PASCA: I' ll tell you the truth, as
long as the application protected our rights, we
9 would. I have to see the application because
every time you agree to something you find a
10 little glitch in it. But as long as the
application protects our rights, and we can be
11 sure they' re not trying to get rid of our
turnaround, our right of way, our easement, we
12 have an easement over the entire shoreline. As
long as they' re not trying to get rid of our
13 docks, we would.
ASST. TOWN ATTY. CORCORAN: How does the
14 applicant feel about that, a joint application?
MR. HENRY: He just included more than the
15 docks, he' s talking about a turnaround.
MR. PASCA: I'm just saying, these are our
16 rights that have been judicially established on
the property. As long as their application
17 doesn' t interfere with our rights.
ASST. TOWN ATTY. CORCORAN: It doesn' t
18 have to mention those rights, right?
MR. PASCA: I don' t know. I haven' t seen
19 the application. That' s why in principal, we want
to legalize the docks by getting that 241G
20 variance, I guess it' s now 121G.
BOARD SECY. KOWALSKI : Yes .
21 MR. PASCA: Yes. So we' re all for that
idea. But that application' s never been made,
22 we've never been asked to agree to it. As far as
the 2006 decision, I don' t read it the same way
23 they did. I think that what you guys decided,
it' s pretty clear, you decided that reconfiguring
24 the dock in the same general area would not lose
its nonconforming status . To say that all of a
25 sudden the nonconforming status went from the
property out into the basin, but it' s no longer
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2 attached to the property, I don' t understand that
because zoning applies to property; it doesn' t
3 apply to water. So, if the docks are attached to
the upland and the upland is where the people park
4 for the use, that' s where the nonconformity
exists . It doesn' t matter what happens in the
5 water; it matters what happens on the land. So
even if you could interpret your decision that
6 way, I don' t think it would be legal to do so
because it would be inconsistent with zoning.
7 ASST. TOWN ATTY. CORCORAN: Can you
address the jurisdictional issue?
8 MR. PASCA: The reis judicata question?
ASST. TOWN ATTY. CORCORAN: Yes .
9 MR. PASCA: Well, I think you guys have
picked up that they're making the same arguments
10 that they made not only in 2004, the exact same
plan that they' re asking you to approve, but
11 they' re also making the same arguments they made
in 2006, just last summer, where they' re talking
12 about how it' s not proper to allow the docks to be
relocated and reconfigured at the Trustees' order.
13 So, I have presented you guys with a written
submission, I'm not going to bore you with --
14 ASST. TOWN ATTY. CORCORAN: Right. But
can you get us a copy of the Court of Appeals case
15 you cited?
MR. PASCA: Sure.
16 MR. HENRY: May I ask you a question,
please?
17 MR. PASCA: Yes.
MR. HENRY: You have submitted something
18 to this Board?
MR. PASCA: Yes .
19 MR. HENRY: Did you know that I was the
attorney to Mr. Zupa?
20 MR. PASCA: I didn' t, but I understand
that they gave a copy --
21 BOARD SECY. KOWALSKI: I gave a copy to
Mr. Zupa.
22 MR. HENRY: I was never served.
MR. PASCA: I don' t know what to say.
23 MR. HENRY: I'm asking the attorney.
MR. PASCA: I wasn' t served. I don' t know
24 what else to tell you.
CHAIRMAN DINIZIO: Don' t make me bang the
25 gavel . You need to speak to us .
MR. PASCA: I understand Mr. Zupa got a
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2 copy yesterday.
CHAIRMAN DINIZIO: Just let us know, if
3 you need to give in writing that' s fine, if
there' s some kind of thing that happens between
4 lawyers that we' re not aware of, please. We have
it, it' s part of the public record. Linda
5 has told us that she gave that to Mr. Zupa. So
that pretty much -- we' re not going to negotiate
6 the rest of that whatever you' re talking about.
MR. HENRY: I think it was very
7 professional of Miss Kowalski to do that for the
Zupas, I appreciate it. I just felt slighted,
8 that' s all, because I wasn' t served. Customarily
attorneys serve each other.
9 MR. PASCA: It was not intended.
CHAIRMAN DINIZIO: Do you have anything
10 you want to add to this?
MR. PASCA: Other than what I have
11 submitted, I would like for the record, I would
like this Board to incorporate the prior records
12 of the prior two hearings in this because I do
think it' s impossible to talk about the issues
13 that have been previously decided without
incorporating those prior records and since
14 they' re your records, I just ask that you
incorporate by reference the prior records .
15 CHAIRMAN DINIZIO: Honestly, I don' t see
us being here for that reason. I think we' re
16 trying to create a gateway for you to come back.
MR. PASCA: You did that in 2004 . You
17 told them what they had to do, and in two and a
half years, instead of taking you up on an
18 invitation, they fought you for two years . They
went to the courts . It took two years because the
19 Appellate Division finally ruled on September 20th
of just this past year that your condition was a
20 proper condition. But they kept saying to the
courts, it' s not fair to us, we shouldn' t have to
21 allow the docks to exist. So --
MR. HENRY: The Appellate Division did not
22 sustain that position at all . They sent it back
to the courts in Suffolk County.
23 MR. PASCA: They sustained the condition
of the Board' s decision.
24 BOARD MEMBER SIMON: The Board spent a lot
of time and reached I believe a unanimous decision
25 on the 2006 decision. And I think that we would
probably be a lot more comfortable with the plan
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1
2 that you were sort of suggesting, getting
something where this is reinterpreted, rather than
3 have us to reinterpret what we allegedly said in
2006 to make our published position exactly the
4 opposite of what we all thought we were signing on
to. And I think that' s what' s called upon by your
5 suggesting that we really never did -- we really
did say it was no longer encumbered, when in fact,
6 we said the opposite.
So I think Mr. Pasca has suggested a
7 route, which if agreeable to both sides, may
actually get us past all this and come up with the
8 same results . So there' s a good chance that
Mr. Zupa will be able to build his house after all
9 if you fellows can get together.
MR. HENRY: Well, I'm sure that we can get
10 together to a point. I don' t think that we can be
on all fours with the entire matter. But it would
11 be -- the Zupas would be delighted to submit an
application for a variance.
12 ASST. TOWN ATTY. CORCORAN: A lot of the
matters while very contentious, and I'm sure very
13 important, a lot of the matters are of no interest
to this Board, just the uses and the area and the
14 feet are of use to this Board.
MR. HENRY: Now the variance would be
15 calling upon you to either grant or deny a
building permit on that piece of property.
16 ASST. TOWN ATTY. CORCORAN: Yes, either by
a couple of ways, either by allowing two uses on
17 one piece of property that doesn' t have the
normally sufficient amount of area or to allow a
18 residential use to coexist with a nonconforming
use. I can' t tell you exactly how, but I'm sure
19 there' s a way to get a variance for one or two of
those things.
20 MR. PASCA: The decision of ' 04 said what
type of variance you needed. It said you give
21 them the 241G variance. If you apply for a 241G
variance, which would allow the nonconforming use
22 to continue, you give a variance to a
nonconforming use, it becomes a conforming use.
23 Then you don' t have this problem of having a
nonconforming use, plus a conforming use, you
24 would have conforming uses. That' s the solution
that you gave them two and a half years ago, and
25 we have yet to see them take you up on it.
BOARD MEMBER WEISMAN: I suspect if you
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1
2 put into writing what you verbalized 20 minutes
ago, or at the beginning, about your willingness
3 to grant the association access to the docks, and
described how --
4 MR. HENRY: We would be very happy to do
that.
5 BOARD MEMBER WEISMAN: You would all be in
a much better position you to evaluate what their
6 proposal was; and you to make your offer formally
stated, we could get this passed. It' s clearly a
7 building site. There' s a building envelope, all
of the building conditions, the zoning conditions
8 are potentially there. The question then is how
you will resolve this dual use, right. And it
9 seems to me Kieran has described two methods and
you have described one yourself.
10 MR. HENRY: Yes.
BOARD MEMBER WEISMAN: But you must make
11 an application that they purview of examining and
come to an agreement.
12 MR. HENRY: We would be very eager and
willing and grateful to have the opportunity to
13 submit a variance application together with
collateral propositions.
14 BOARD MEMBER WEISMAN: They have the right
to examine and agree or disagree.
15 CHAIRMAN DINIZIO: Okay. So we can expect
I suppose an application --
16 BOARD SECY. KOWALSKI: Probably close the
hearing and then maybe -- the first step to get
17 before us with an application is to have the
Building Inspector write a disapproval . So if you
18 apply to him for the dual use of the property as
was described, you did a better job than I can
19 describing it.
ASST. TOWN ATTY. CORCORAN: Tony' s right.
20 It' s got to conform with the 2004 decision. So we
all have to be in agreement that whatever you
21 apply for is what this Board allowed you to do,
and once we can all do that, then I think we can
22 have something that people will hopefully not sue
upon if and when it' s granted.
23 MR. HENRY: Thank you very much. I would
ask you to give an audience to several of the
24 citizens here.
BOARD MEMBER WEISMAN: Absolutely.
25 MS. MESIANO: Catherine Mesiano. I would
just like to add some factual information.
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2 Subsequent to this Board' s decision that you would
grant a building permit on the condition that the
3 docks either be removed or legalized through some
form of a variance process, several things have
4 happened. I submitted quite a bit of information
to this Board, and I would just like to remind
5 this Board that I submitted ample information to
you to show that this dock, this preexisting,
6 nonconforming dock in my humble opinion, doesn' t
meet the test of a preexisting, nonconforming use
7 because the structure continued to grow and change
and be modified over time, and I could document
8 that from the early 160s to the present. The
impact of that information has resulted in the
9 Trustees, subsequent to their decision for the
association to modify or move the dock, the
10 Trustees then issued a -- I may have the
terminology incorrect -- but issued a summons or a
11 notice that the structures were illegal, and they
were to be removed. And that continues to remain
12 open. The DEC, based on the same information, has
determined that the docks at best are in question
13 and violations have been issued to the association
for the existence of the docks for the continued
14 existence, the construction, reconstruction,
etcetera. So I have to ask this Board, I'm asking
15 whoever might like to give me a brilliant answer,
is this issue moot since the agencies having
16 authority over the subject docks have deemed them
to be illegal? What authority does this Board
17 then have to say --
ASST. TOWN ATTY. CORCORAN: Currently
18 none.
CHAIRMAN DINIZIO: None, but I think that
19 was the subject of the application in 2006 .
ASST. TOWN ATTY. CORCORAN: Also 2004 .
20 CHAIRMAN DINIZIO: And we considered that
information, naturally you presented that to us,
21 and we looked it over and gave it the weight that
we thought was within our purview.
22 MS . MESIANO: And since that time the
violations have been issued which --
23 CHAIRMAN DINIZIO: That' s not today. It' s
not something we need -- you can' t get any
24 satisfaction from us today concerning that
information. Did they violate, has the Building
25 Inspector not given them a permit; are you
appealing the decision that anybody has made
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2 concerning those docks right now? No, that' s not
what' s been advertised. So I understand you want
3 your information to be relevant, but I don' t think
ever, I don' t know, I don' t know that it is today,
4 in particular, maybe in the next application it
may very well be, or maybe that goes before the
5 Trustees . But if you' re saying they have
violations on there, what kinds of satisfaction do
6 you want from us that we can' t even consider
because it' s not even part of our application
7 today.
MR. HENRY: We appreciate that. We just
8 wanted to draw to your attention that it' s our
position that they' re illegal, and they constitute
9 an illegal structure. I know that it' s not
before --
10 ASST. TOWN ATTY. CORCORAN: Right. And
we've made the point many times that the fact that
11 in the Trustees eyes they may or may not violating
the Trustees' rules on getting a Trustee permit.
12 This Board is not the Appellate Board of the
Trustees . This Board is dealing with uses and
13 zoning under the zoning code and the fact that
they may be illegal in other jurisdiction' s eyes,
14 such as the DEC or the Trustees, it' s interesting,
but this Board does not rule on that.
15 MR. HENRY: It was meant to be rhetorical
and please don' t feel obligated to respond.
16 CHAIRMAN DINIZIO: Thank you.
MR. HENRY: Thank you.
17 CHAIRMAN DINIZIO: Anybody else wish to
make comments? Dr. Samuels?
18 MR. SAMUELS : Tom Samuels, Fisherman' s
Beach, Cutchogue. And I just want to thank my
19 mother and my father for not encouraging me to go
to law school . Because in fact, a settlement is
20 available that will -- that should satisfy both
sides of the question and get you guys off the
21 hook, get the Town away from its legal bills,
which it never should have been involved in in the
22 first place; they got involved in a civil action,
and they regret it, I'm sure they regret it at
23 this point. But what bothers me more than
anything is the Town Attorney' s failure to support
24 the Trustees, who are the oldest elected body in
this town.
25 CHAIRMAN DINIZIO: Tom --
ASST. TOWN ATTY. CORCORAN: I would
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2 respectfully disagree with that.
CHAIRMAN DINIZIO: We have to keep it on
3 the relevant issue.
MR. SAMUELS: When was the last time that
4 this Board issued a use variance?
CHAIRMAN DINIZIO: I can' t remember one,
5 but I'm sure there was at least one.
MR. SAMUELS : I don' t remember one,
6 CHAIRMAN DINIZIO: But I'm sure there was
at least one.
7 MR. SAMUELS: Southampton did once, in
1640 .
8 CHAIRMAN DINIZIO: The point is we can' t
make decisions on what the Trustees do. We' re not
9 the judges of the Trustees.
MR. SAMUELS: What bothers me is that the
10 Town Attorney is allowing the Trustees' authority
to be emasculated. That bothers me a great
11 deal .
CHAIRMAN DINIZIO: Take that up with the
12 Town Board.
MR. SAMUELS: A great deal and it' s
13 inexcusable.
CHAIRMAN DINIZIO: Tom, listen, I can' t
14 let you sit here and attack the Town Attorney.
MR. SAMUELS: It' s done.
15 CHAIRMAN DINIZIO: It' s done, okay.
MR. SAMUELS : I'm not going to say
16 anything more about it.
CHAIRMAN DINIZIO: Thank you. Anything
17 else you would like to add?
MR. SAMUELS: Duly noted.
18 ASST. TOWN ATTY. CORCORAN: Duly noted.
MR. SAMUELS: I talked at some length with
19 members of the Board and so on and so forth, and I
know most of them. And I think this matter can be
20 settled. A very, very fair and equitable and
generous offer has been made. I don' t know why it
21 hasn' t been accepted. I really don' t know. I'm
sure everybody involved is tired of this,
22 including the attorneys, including staff,
everybody, including the ZBA. I don' t know why it
23 can' t be settled in a two hour luncheon meeting to
be perfectly honest. I' ll be happy to buy.
24 That' s all I have to say.
The Zupas are customers of mine. They
25 have become friends of mine. I have many friends
on Paradise Point, in the Paradise Point
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2 Association, who I have worked for all of them.
It' s so unfortunate. It is so unfortunate, but -
3 yet, the principals in the Paradise Point
Association can' t see it, but it' s as clear as it
4 could possibly be, 75 feet by 75 feet, you get
title and deed to the property. You probably deal
5 with the DEC if you owned lands where the docks
are, and the Trustees . That' s what I wanted to
6 say.
Now, Tony is a good friend of mine and
7 he' s a damn good lawyer because he' s my lawyer,
and this particular case, I would request of him
8 to consider that offer.
MR. PASCA: It doesn' t work, Tom. I'm
9 sorry. A, it would require us to give up our
turnaround.
10 MR. SAMUELS: No, it wouldn' t.
MR. PASCA: Yes, it would. The way you
11 presented it to me for the first time today, I've
seen the plan for the first time.
12 CHAIRMAN DINIZIO: Hold on. Negotiate
that later on. We' re not here to --
13 MR. PASCA: You' re right, you' re right.
But we have been accused of being stalwarts or
14 something to a plan that is supposed to be
eminently reasonable, and I can' t let that stand
15 on the record because these records are
transcribed and it' s not true.
16 CHAIRMAN DINIZIO: But we' re not here to
decide that, sir, quite honestly. We' re not here
17 to decide if it' s reasonable or not, you have to
decide that. Thanks a lot, Doc, appreciate it.
18 MR. SAMUELS : You' re welcome, and I thank
you all for serving on this Board and spending so
19 much time, and I apologize if you were personally
offended by my remarks .
20 ASST. TOWN ATTY. CORCORAN: None taken.
CHAIRMAN DINIZIO: Anybody else, the lady
21 in the back had her hand up.
MS. COLLIER: Andrea Collier. We live in
22 Paradise Point, and I really don' t like being
here, but the reason that I show up is because if
23 I don' t, I'm then accused of not defending my
property and acquiescing to things; so I feel a
24 need to, until this is finished, to keep coming
here. It sounds very promising. I think there' s
25 been a little bit of a softening in this
situation, and I think that would be just great.
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2 I want to say that if the association is
amenable to the Zupas having a house, they should
3 go ahead and let them do that, and if the Zupas
are amenable to coexisting with the docks, I've
4 never heard this being discussed before so I
thought that was encouraging.
5 I want you all to remember something,
there are other people involved here, and I'm
6 saying this for my husband and I on the record.
This isn' t just the association and the Zupas .
7 The association does not represent us, okay, they
might write it down in briefs, but they don' t. In
8 fact, their attorneys told us to hire counsel
because we were in conflict with the association,
9 which we have done. Thank God that hasn' t had to
go anywhere yet -- dot, dot, dot. But remember
10 when you' re making decisions on these docks that
there are other people that own property and own
11 docks on the basin and please try to refrain from
doing what I've seen done in the past, where
12 sentences were written down and decisions were
made and opinions were granted where it kind of
13 shores up the position of one group over another
without considering the other people that are in
14 there.
I know this is a little confusing, but I
15 want to tell you that the association, we've tried
to speak to them on a couple of occasions and had
16 good conversations, but their position is that
they have told us that if they wanted to tell us
17 that we had to take our dock out and that we would
have to walk around to the main dock, that' s what
18 they would tell us to do because they own the
surface waters in the basin, that' s what Jim
19 Spiess told me on a phone call, and he told my
husband the same thing. I don' t think that would
20 fly anywhere, we've run it by five attorneys and
everybody has kind of scoffed at it, but you never
21 know. So just, when you're rendering your
decision, please remember that we' re there too.
22 It' s not just the association and the Zupas, there
are other homeowners . It would be nice if it were
23 just like that, but unfortunately that' s not the
case. So I think you understand that.
24 The other thing I wanted to say to
Mr. Corcoran is not to start a fight or anything,
25 but I specifically asked you at -- it must have
been a Trustees hearing because everyone here said
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2 that they hadn' t heard this before, I asked for a
specific reason at the time, who would have to
3 apply for the variance, the association or the
Zupas, and you told me it had to be joint.
4 ASST. TOWN ATTY. CORCORAN: All right,
well, I wasn' t at a Trustees meeting where that
5 occurred and if I said that to you --
MS. COLLIER: Then it was at a Zoning -- I
6 can' t keep them --
ASST. TOWN ATTY. CORCORAN: And I'm not
7 taking a different position today. I asked a
question of the applicant, what led him to believe
8 that, and --
MS . COLLIER: I think what led him to
9 believe it is when you read the opinion, it' s
nebulous. It doesn' t say the Zupas . It says a
10 variance must be applied for and then that' s why I
asked the question, then I was given the answer
11 that it was both. Okay. So --
ASST. TOWN ATTY. CORCORAN: That' s what
12 everyone here seems to be saying.
MS . COLLIER: Okay. So I think it' s hard
13 because the Board' s change over and you guys don' t
remember what happened before, but we do. And I'm
14 glad that that was cleared up because I thought
that you had cleared it up for me at the time.
15 ASST. TOWN ATTY. CORCORAN: That' s what
everyone here today seems to be saying as well.
16 MS . COLLIER: So now it' s both. I think
you remember me asking this . So thank you very
17 much.
ASST. TOWN ATTY. CORCORAN: That' s what
18 we' re all contemplating here today, a joint
application.
19 MS . COLLIER: I think it' s a great idea
but it sounded like no one had ever heard about
20 that before and I've been carrying around with me
for a about a year I thought it was a joint
21 application.
BOARD SECY. KOWALSKI: It has to be worked
22 out between the two parties .
ASST. TOWN ATTY. CORCORAN: If I said that
23 to you at the time, I'm sure I believed it.
MS. COLLIER: I know, I'm sure you did but
24 I'm just -- you know.
BOARD SECY. KOWALSKI : If they asked me, I
25 would have said the same thing.
MS . COLLIER: Okay. Remember the point
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2 though, it' s not just two parties . There are
other people involved and you' re here to protect
3 us as well. We pay taxes are, we' re pretty good
to the town in our support. So, please, remember
4 us, okay. Thank you.
CHAIRMAN DINIZIO: Okay. Thank you.
5 Anybody else like to make any comment?
Yes, sir, please state your name.
6 MR. DEAN: Good afternoon, Thomas Dean,
Donna Mortimer. We live on the basin, and we
7 don' t oppose the Zupas having a house built. And
previous on the record I think we have stated that
8 we don' t oppose a dock by the association based on
the original submission application, which was the
9 dock where it was. Subsequent to that there' s
been a lot of maneuvering around, and we
10 definitely object to the resolution that was
submitted to this Board of moving that dock and
11 turning it because it now becomes right in front
of our house.
12 CHAIRMAN DINIZIO: Sir, that' s not
relevant to what we're speaking to today. So if
13 you could keep it to what was advertised in the
paper, then -- I mean, we understand there' s
14 plenty of problems with the dock. I understand
from Mrs . Mesiano' s testimony there' s other legal
15 stuff going on, but we would just like to still
stick to the relevant part of this particular
16 application that' s before us, which is basically,
they have been turned down by the building
17 inspector and are looking for a way to remedy that
situation.
18 MR. DEAN: As neighbors, we don' t oppose
dealing with our neighbors .
19 CHAIRMAN DINIZIO: Either side, right?
MR. DEAN: Either side. However, I would
20 like to say that the Paradise Point Association
has not communicated with us except for maybe once
21 a year. They don' t represent us, and we don' t
support a lot of their applications. They have
22 never sent over any applications or any of the
correspondence, legal correspondences that they
23 should include us in. They are making decisions,
what they think is on the whole for 26 people,
24 which is in dispute for the membership. We don' t
believe that there' s 26 members.
25 CHAIRMAN DINIZIO: You don' t dispute that
they have standing here?
March 29, 2007
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2 MR. DEAN: I believe that they have
standing, but they don' t speak for us.
3 MS. MORTIMER: Nor for half of the people
who live there.
4 MR. DEAN: And the people they' re talking
about for the basin or this dock should deal with
5 people that have rights in the basin, not people
who have traditionally paid to be able to dock
6 there.
CHAIRMAN DINIZIO: Well, that' s not
7 subject to here either. I understand you guys
need to vent, and I know that this is a good
8 place, but quite honestly, this is not going to be
the last opportunity you' re going to have to make
9 the statements.
MR. DEAN: I wish it was .
10 CHAIRMAN DINIZIO: Well, it' s not because
of the way things are.
11 MR. DEAN: Thank you for your time.
CHAIRMAN DINIZIO: I do appreciate the
12 fact -.-
MR. DEAN: We want to protect our riparian
13 rights . We don' t want to lose any value in our
house because something' s getting moved and
14 relocated into another position.
CHAIRMAN DINIZIO: We are not going to
15 make any decision that would affect that.
MR. DEAN: Quite honestly, if the house
16 was in a place that we didn' t agree with, I would
object -- I would be opposing that as well. But
17 where it is is not objectionable to us .
CHAIRMAN DINIZIO: Okay.
18 MS . MORTIMER: Is there any way we could
get a list of everybody who they claim is on the
19 association? Because when they keep using the
association, it' s only a minor few people, and I
20 would rather not use the association to --
CHAIRMAN DINIZIO: Hold on. I don' t know
21 what legally we can do.
ASST. TOWN ATTY. CORCORAN: We take an
22 application on behalf of the corporation that is
the association so --
23 MR. DEAN: Can you just put it on the
record that even though they' re submitting
24 applications, they're not representing everybody?
CHAIRMAN DINIZIO: You have to decide what
25 the corporation -- they have got their president
and all that. You have to stand up for that
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2 whatever that is.
BOARD MEMBER WEISMAN: Let me ask a
3 question and make a potential suggestion, which is
beyond the scope of what the ZBA can do, but just
4 for the sake of democracy and remediation or
mediation and the sort of pervasive attitude of
5 discomfort among many people in this whole
process . Should the time come, and we hope it
6 will in our lifetime that the Zupas and the
association come to some sense of agreement about
7 what will happen to those docks that are being
used by the members of the association,
8 regardless --
MR. DEAN: All the members, a limited
9 number.
BOARD MEMBER WEISMAN: Okay, a limited
10 number. Usually when notices go out, legal
notices and also hearings take place, neighbors
11 are informed.
MR. DEAN: We' re not.
12 MS. MORTIMER: We're never informed.
BOARD MEMBER WEISMAN: I know, and there' s
13 a reason for that, this is not a typical --
CHAIRMAN DINIZIO: Land association.
14 BOARD MEMBER WEISMAN: Right. My
suggestion would be, I'm asking how you would feel
15 about this and how the Zupas, or counsel would
feel, when these things are under discussion, and
16 there are some basis for consensus of letting
those who have property on the basin know about
17 it, simply be informed or at the very least, let
them know that that information is in the Zoning
18 Board' s office and that you may as citizens,
there' s a FOIL law, you can come in and examine
19 the information.
MR. HENRY: That would be wonderful.
20 BOARD MEMBER WEISMAN: No, I don' t
believe, I think people are attempting to resolve
21 this situation to everyone' s satisfaction so that
it' s a win-win situation that the fracturages that
22 have failed considerably over time are ever
resolved so that people can live comfortably and
23 quietly in their piece of existence and everyone
gets what they want and needs some way. There
24 might have to be slight compromises, but everyone
in the end, it' s a win-win situation instead of
25 one wins and one loses . If that can be resolved
and you can be informed, it seems to me a
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2 civilized and reasonable way to proceed so that
misrepresentation does not continue and
3 misinformation and gossip is not a part of this
process. Maybe it' s a request, I don' t know
4 exactly what it means.
MR. HENRY: If it' s a request, I'd love
5 for everyone to --
BOARD MEMBER WEISMAN: But you need to
6 understand, and the woman who spoke previously,
that all of the information that we have is public
7 in the office. And that it is available for you
to come and look at it at any time. I'm simply
8 saying that as a matter of civility that those who
have property on the basin simply have access to
9 what' s going on.
BOARD MEMBER SIMON: Sort of an informal
10 call it a "Concerned Citizens of Paradise Point. "
Everyone can be members .
11 MR. PASCA: I don' t have a problem with
it, it' s a good suggestion.
12 BOARD MEMBER WEISMAN: Well, that answers
the question.
13 MR. DEAN: Most of the way we get
information is by coming here to get it.
14 CHAIRMAN DINIZIO: Well, certainly you
can.
15 BOARD MEMBER WEISMAN: You can always do
that, but I'm asking for a little bit more.
16 CHAIRMAN DINIZIO: Honestly, we can take
that under advisement, but quite honestly, we' re
17 not going to compel.
BOARD MEMBER WEISMAN: Right. That' s
18 advice, we can' t compel.
MR. PASCA: I' ll tell you, when we do
19 notices, Miss Kowalski tells us who to send them
to. I'm happy for you to put it on the list, all
20 members of the association.
CHAIRMAN DINIZIO: No, I don' t think that
21 we want to be compelled either. Because I don' t
want her in the position of making a decision as
22 to who gets notices. So, no, you' re not going to
get Linda to make a list.
23 MR. PASCA: I' ll try to remember, how
about that.
24 CHAIRMAN DINIZIO: Why don' t you be civil
to each other?
25 BOARD MEMBER WEISMAN: I'm suggesting a
more transparent process, that' s all . That way
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2 any potential temper tantrums or getting their
nose out of joint, it can all be remediated, it
3 can all be prevented by simply granting each other
the right to information.
4 BOARD SECY. KOWALSKI : It' s also
advertised in the paper. We have a sign we post,
5 there' s the sign up for seven days. There are
letters that go out to the association and the
6 other neighbors close by. The office is open from
8 : 00 to 4 : 00; you can call us at any time and ask
7 is there an application and what calendar is it
on. You can call once a week if you like. We
8 have many ways to communicate on that.
CHAIRMAN DINIZIO: And I'm hoping in the
9 next three or four months we' ll have it on the
website.
10 MR. DEAN: The website is terrific . I
found out all about nonconforming uses and who is
11 allowed to apply for a permit.
CHAIRMAN DINIZIO: That' s on there now.
12 MR. DEAN: It' s great, I wish I could talk
about that. But you' re asking not to, I' ll leave
13 that to another day.
CHAIRMAN DINIZIO: I am quite honestly.
14 MS. MESIANO: I just want to say that I
did send certified notices to the basin owners,
15 not just the adjacent and contiguous owners, so
that step was taken. Linda did give me a list and
16 I sent beyond the list that she had given me. So
I just wanted to make the point that that attempt
17 is made.
BOARD MEMBER WEISMAN: Was that 2006 or
18 2004?
CHAIRMAN DINIZIO: Cathy, do you have the
19 cards?
MS. MESIANO: Yes, I do.
20 CHAIRMAN DINIZIO: Give them to Linda some
time.
21 Okay, now is there anyone else who would
like to make a statement concerning the relevant
22 issues of this application? No, okay, then I'm
going to make a motion that we hold this hearing
23 open until April 26th pending perhaps an
application for a variance; is that correct?
24 BOARD SECY. KOWALSKI : A new application
for a variance from the relevant parties.
25 CHAIRMAN DINIZIO: A new application for a
variance from the relevant parties, and if that' s
March 29 , 2007
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2 not forthcoming, then we will probably close it at
that time.
3 MR. PASCA: Shouldn' t that be renoticed?
BOARD SECY. KOWALSKI: It will be put on
4 another calendar when we get it.
CHAIRMAN DINIZIO: We've got to get the
5 application first.
MR. PASCA: That' s what I mean, it would
6 be treated as a new application?
ASST. TOWN ATTY. CORCORAN: No, we' re just
7 holding this one open until --
CHAIRMAN DINIZIO: We' re not going to have
8 a hearing the moment we get that.
BOARD SECY. KOWALSKI: We' ll still need a
9 resolution to close it at that time.
CHAIRMAN DINIZIO: I made that motion.
10 (See minutes for resolution. )
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4 C E R T I F I C A T I O N
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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 29th day of March, 2007 .
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20 V 1�(Ili
i/4HOrence V. Wiles
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March 29, 2007