HomeMy WebLinkAboutZBA-06/28/2007 Hearing 1
2 TOWN OF SOUTHOLD ZONING BOARD OF APPEALS
3 COUNTY OF SUFFOLK: STATE OF NEW YORK
4 ------------------------------------------X
5 TOWN OF SOUTHOLD
6
7 ZONING BOARD OF APPEALS
8 ------------------------------------------X
9 Southold Town Hall
Southold, New York
10
11 June 28 , 2007
12 9 : 30 a .m.
13
14 Board Members Present :
15
16 JAMES DINIZIO, JR. - Chairman/Member
17 GERARD P . GOEHRINGER - Member ( start to 2 : 30 p .m. )
18 RUTH D . OLIVA - Member
19 MICHAEL A. SIMON - Member
20 LESLIE KANES WEISMAN - Member
21 LINDA KOWALSKI - Board Assistant
22 KIERAN CORCORAN - Assistant Town Attorney ( 10 : 10-1 : 20
23 p .m. )
24
25
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 INDEX OF HEARINGS :
3
4 Hearing:
5 Page :
6
7 Melnick #6050 3-14
8 Mazur #6044 14-22
9 Brewers Yacht Yard #6051 23-26
10 Ragusa #6048 26-40
11 Landau #6033 40-71
12 Smith #6025 71-89
13 O ' Reilly #6058 89-102
14 Oak #6046 102-104
15 Lyon at FI #6042 104-107
16 Kelly #6026
17 Reeve #6041 111-119
18 Gross #6045 120-125
19 Iavarone #6047 104 ; 107-111
20 Sachman #6040 125-134
21 Retus #6049 134-140
22 Cingular at EM #5826 140-187
23
24
25
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1 ZONING BOARD - OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO : I ' d like to call a
Thursday, June 28 , 2007 ZBA Meeting to order,
3 please .
I 'm going to entertain a resolution for a
4 State Environmental Quality Review Act for Type II
Actions .
5 (See minutes for resolution . )
6 Hearing #6050 - Melnick
CHAIRMAN DINIZIO: Okay. Our first hearing is
7 Mark Melnick. Leslie, that ' s your application?
BOARD MEMBER WEISMAN : Right .
8 CHAIRMAN DINIZIO: Just hold on just one
second. She ' s going to read the legal notice .
9 BOARD MEMBER WEISMAN : Good morning, Mr .
Melnick.
10 MR. MELNICK: Good morning.
BOARD MEMBER WEISMAN : For the record, I ' ll
11 read the legal notice :
"Request for Reversal of Building Department
12 determination which states that the "as built
alteration to dwelling includes demolition and
13 reconstruction of the existing foundation deviated
from ZBA decision #5977 . " ZBA #5955 granted
14 applicant ' s prior request concerning setbacks
related to the proposed increase of ceiling height
15 from 18 ' to 32 ' and change from the existing
height of 1 . 5 stories to two stories under Zoning
16 Code Sections 280-116 and 280-124 . Also requested,
if a reversal is not granted, is a variance
17 amendment for reconstruction of the dwelling with
setbacks at less than 75 feet from the bulkhead,
18 less than 35 feet front yard setback, and less
than 35 feet rear yard setback (ref . Building
19 Inspector ' s August 25, 2006 Notice of Disapproval,
amended September 28 , 2006) . Location of Property:
20 405 Private Road #3 (a/k/a Pine Creek Road) ,
Southold. " Okay. Good morning. Let me just
21 clarify what my perception is of what the problem
seems to be .
22 MR. MELNICK: Okay .
BOARD MEMBER WEISMAN : It appears that your
23 foundation, your existing foundation, needed some
repairs that were not known at the time, primarily
24 the footing .
MR. MELNICK: Correct .
25 BOARD MEMBER WEISMAN : For structural
reasons , there was some cracking . And your
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 architect used the word excavation on the plans
that were submitted to the Building Department and
3 states that he was in error in using that word.
There was no excavation. So you ' re requesting a
4 reversal of the Building Inspector ' s Notice of
Disapproval on your building permit . Now, would
5 you please add to that . Say if that ' s correct .
MR. MELNICK: It ' s correct . Basically, when
6 we called the architect when we found out that the
structural aspect of the footings was deficient,
7 the architect made the recommendations of what to
do based on what he felt was normal building code
8 and they concurred with the builder and they did
the work and the Town came in and inspected the
9 work and approved it and then they submitted their
as built drawings and then the Town subsequent to
10 that submitted the rejection, of those plans
because we varied from the construction .
11 Everything that was built was in kind. It was
replaced right back where it was .
12 BOARD MEMBER WEISMAN : Well, I 'm sure all of
us have been there for a site inspection . I must
13 say you ' re reconstructing and you ' re renovating
exactly the way that the variance was granted with
14 the exception that some in kind structural work
was necessary but in no way did it affect the
15 walls that were there or any other condition of
the existing dwelling; is that correct?
16 MR. MELNICK: That is exactly correct .
BOARD MEMBER WEISMAN : Okay. I don ' t have any
17 actual questions . I think it ' s fairly clear and
straightforward.
18 CHAIRMAN DINIZIO : Okay. Michael?
BOARD MEMBER SIMON : I have one very easy
19 question . What does CMU stand for, the CMU walls?
MR. MELNICK: Concrete Masonary Unit . It ' s
20 the block that they use on walls .
BOARD MEMBER SIMON : That was the only part
21 of the application that I didn ' t know.
MR. MELNICK: I had to ask them that too .
22 BOARD MEMBER WEISMAN : You could have asked
me .
23' BOARD MEMBER SIMON: The other is , now
there 's no height being added to the foundation?
24 MR. MELNICK: No .
BOARD MEMBER SIMON : I have no questions .
25 CHAIRMAN DINIZIO: Ruth? .
BOARD MEMBER OLIVA: No . I was down there
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 again and everything looks to me the way you said
it was going to be . The footings weren ' t great and
3 you had to put them back and you put it back in
exactly the same place . I have no problem.
4 CHAIRMAN DINIZIO Gerry?
BOARD MEMBER GOEHRINGER: No comment but I
5 just wondered if the Building Inspector was here
for this particular application or for a future
6 one because I just wanted to ask him a question.
BUILDING INSPECTOR VERITY: I 'm here to
7 answer any questions .
BOARD MEMBER GOEHRINGER: Can I just ask you
8 one question, Mike? As you know we have
experienced --
9 CHAIRMAN DINIZIO : We have a new person here .
BOARD MEMBER GOEHRINGER: I understand that .
10 CHAIRMAN DINIZIO: Have him say his name .
BOARD MEMBER GOEHRINGER: Oh . Mike, can you
11 say your name for the court reporter, please .
BUILDING INSPECTOR VERITY: Michael Verity,
12 Chief Building Inspector, Town of Southold.
BOARD MEMBER GOEHRINGER: We know that we ' ve
13 had numerous applications concerning these
foundations, these existing foundations and so on
14 and so forth . I just wanted your opinion regarding
one thing . Over the years, the Town of Southold
15 has had -- I 'm going to say out there there are
numerous -- let me rephrase the question . There
16 are numerous block foundations and there are
numerous poured foundation. Certainly we went to
17 poured probably in the 50 ' s and the 60 ' s . The old
fashioned poured were done basically by the
18 sheathing that was on the house and then they
would take that sheathing off which was a
19 foundation type of sheathing to pour the
foundation in the 40 ' s and probably early 50 ' s and
20 then we went to that new system that they used.
Not the newest system which is the foam system
21 but -- . Is there any bet that a 40 or 50 year
foundation is probably going to be deteriorated
22 enough that it may not meet current
specifications?
23 BUILDING INSPECTOR VERITY : There ' s a good
possibility depending on the type of construction .
24 If it ' s poured concrete, probably less likelihood.
Concrete CMU would, in 40 or 50 years time, does
25 take a beating because of the nature of the
construction. It ' s not done as a unit . It ' s done
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 as an individual block so there is a good
possibility. That ' s basically what ' s happening . No
3 fault to the homeowner . But it does happen. They
get into the project and they notice that it ' s not
4 something they want to build on . Put something new
on, especially a second story, as I 'm thinking
5 this is the way this was originally proposed for a
two-story building .
6 BOARD MEMBER GOEHRINGER: Do you have any
suggestions to the Board or to me regarding this
7 situation?
BUILDING INSPECTOR VERITY: I would recommend
8 that an engineer ' s report be submitted to the ZBA
in the future because it will eliminate a lot of
9 the problems like we had in East Marion and a few
others that we know of and it turns into,
10 sometimes, a battle .
BOARD MEMBER GOEHRINGER: That engineer ' s
11 report would be -- would probably require the
nature of a backhoe or some sort of small
12 machinery to go down all the way to the actual
base of the foundation and inspect it? The
13 footings, I should say?
BUILDING INSPECTOR VERITY : Yes .
14 BOARD MEMBER SIMON : The question I have is ,
it ' s a little late if the engineer ' s report is
15 sent to the ZBA because by that time, we ' re going
to have an as built house .
16 BUILDING INSPECTOR VERITY : No . That ' s
correct . We usually stress, and again they don ' t
17 know and we don ' t want to add a lot of extra cost
if you ' re only doing a $20 , 000 job . Do we really
18 want to impose a $5, 000 or $ 6, 000, whatever the
cost may be, of an engineer ' s report on that? But
19 if it ' s a larger scale job, something we may even
want to consider . But this one was going to you
20 regardless because of the setback. So it ' s
something that would have been a good idea to ask
21 for at the time . That ' s the point that I ' m
making . Not for an as built because it ' s too late .
22 BOARD MEMBER SIMON : That ' s the point . Not
having to do with this case, which is not a
23 problem, is as you know we have other cases which
are as built and one of the strongest arguments
24 for us granting the variance is look it ' s as
built . Is there some way of halting that process
25 before it ' s built and have the engineer ' s report
at least to have these applications scrutinized in
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 a way so that somebody is going to be held
responsible for making sure we don ' t get this as
3 built situation where, in fact , in turns into a
demolition .
4 BUILDING INSPECTOR VERITY : I guess it ' s the
same as what you do on the bluff . I think you,
5 correct me if I ' m wrong, you ask for a soil
determination. So there ' s no reason why you
6 couldn ' t ask for that as well . I think there ' s
other cases where you ask for engineer ' s reports ,
7 cell towers, different things like that . It would
not hurt because it would eliminate the process .
8 It would probably even put the owner in his home
at this time instead of waiting to go through the
9 Building Department and through other agencies to
get approvals .
10 BOARD MEMBER GOEHRINGER: I just wanted to
thank you for that opinion.
11 BOARD MEMBER OLIVA: How about with cinder
blocks? Some of the old ones with cinder blocks?
12 BUILDING INSPECTOR VERITY: Something like
that should definitely be reviewed and there ' s no
13 reason why they can ' t do core samples and stuff
like that . It ' s a cost to the applicant but again
14 it may save months --
BOARD MEMBER OLIVA: Saves them in the long
15 run .
BUILDING INSPECTOR VERITY: And in the long
16 run it could save a lot of time and money.
BOARD MEMBER OLIVA: Thank you, Mike .
17 CHAIRMAN DINIZIO: I got a couple of things
to say about that . Number 1, the very first thing
18 we said here was that we didn ' t seem to think that
this was much of a problem and if that ' s the case,
19 why are we denying people and why are you -- this
is not your fault Mike, because I 'm assuming that
20 you didn ' t deny them because they went ary of our
requirements in the variance . They went awry of
21 the statement that we put at the bottom of our
variance, which is any deviation from the --
22 BUILDING INSPECTOR VERITY: That ' s correct .
CHAIRMAN DINIZIO: It ' s not like they did
23 anything other than they found a foundation that ' s
not good to build. They ' re not increasing the
24 setback, they ' re not increasing the non-conformity
anymore than we agreed and quite honestly, perhaps
25 we should be assuming that that foundation may
need to be replaced and that there is no reason
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 why you can ' t just say replace the foundation
beyond requiring an engineer ' s report for
3 something that really has no basis .
BUILDING INSPECTOR VERITY: That ' s correct .
4 You could assume worst case scenario which is what
happened here . They went for a second story
5 addition to an existing building . They found out
that they couldn ' t really build on top of the
6 existing foundation and the existing first floor
so the entire area was removed or a large
7 percentage of it was removed so it is a deviation
as per the disclaimer .
8 CHAIRMAN DINIZIO : But not necessarily a
deviation from the variance?
9 BUILDING INSPECTOR VERITY: No, but it still
-- that ' s correct . It still meets, like you said,
10 in place and kind, all the requirements but it ' s
gone beyond the scope of the work.
11 CHAIRMAN DINIZIO : And I agree with you and
the times that we live in in Town Hall, I agree
12 with you . But I suppose that the Board should
assume when they ' re granting a variance that
13 perhaps the foundation is going to need to be
replaced. That if they do not vary from that that
14 if there ' s no harm in replacing that foundation,
in other words, if it ' s a crawl space, it ' s gotta
15 stay a crawl space . It can ' t be a basement .
BUILDING INSPECTOR VERITY: That ' s correct . I
16 would say you would not be able to increase .
CHAIRMAN DINIZIO: There ' s really no reason
17 why you should have to say no, you can ' t do that .
Now, I understand the East Marion situation, but I
18 think we all learned from that .
BUILDING INSPECTOR VERITY : Yes .
19 CHAIRMAN DINIZIO: But we have this one, I
believe we have another one today, that perhaps
20 our statement on the back should be reworded to
allow for that .
21 BOARD MEMBER WEISMAN : I agree .
CHAIRMAN DINIZIO : The Board makes the
22 assumption that it ' s gonna happen . If it ' s a 40
year old foundation, it ' s not going to support the
23 new type of construction that we ' re going to be
putting on it . Especially if we ' re going to be
24 letting them add a second story.
BOARD MEMBER WEISMAN : Yeah . Exactly.
25 CHAIRMAN DINIZIO: Maybe instead of an
engineer ' s report, we ' ll just say he has what he ' s
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 always had, I believe, the right to do that .
BUILDING INSPECTOR VERITY: If we have the
3 discretion to do so, it ' s really a no-brainer but
if you add the disclaimer in there, it ' s very hard
4 for us to get around.
CHAIRMAN DINIZIO : I agree .
5 BUILDING INSPECTOR VERITY : It ' s a good thing
to have there because some people go beyond what
6 the Melnicks have done . I mean, 'the Melnicks, in
place and kind, don ' t have a problem with that but
7 as your reading the documentation, you have to
follow what ' s stated.
8 CHAIRMAN DINIZIO : Absolutely.
BOARD ASSISTANT KOWALSKI : There ' s only one
9 thing . When we do the legal notice, we ' re basing
that on what the applicant applies for and if they
10 apply for a small porch addition or, then the
neighbors are not getting properly notified that
11 this could also be a demo or a new foundation .
Maybe if the applicant would give more
12 information, we could advertise it with that also .
CHAIRMAN DINIZIO: We can ask that question .
13 We can say do you anticipate having to redo the
foundation . Have it in the record like we did --
14 BUILDING INSPECTOR VERITY: Exactly.
CHAIRMAN DINIZIO: And therefore, he can go
15 back to that and refer to our discussion and know
that we discussed it and that it was perfectly
16 fine . We based our decision on that .
BOARD MEMBER WEISMAN : I fully support that .
17 BOARD ASSISTANT KOWALSKI : But we can
advertise it too though .
18 BOARD MEMBER WEISMAN : There are numerous
cases past and, I 'm sure in the future, if we
19 reword this so that Mike doesn ' t have to bring
this back to us again, if it is in place and
20 kind. If it ' s a total demo and a brand new
foundation, that ' s another story. That should have
21 been an anticipated.
CHAIRMAN DINIZIO: Everyone ' s going to be a
22 total demo .
BOARD MEMBER WEISMAN : No . I mean in this
23 case, they rebuilt the foundation, they didn ' t do
anything to the house . I 'm not talking about the
24 foundation . Well , not, no . Sometimes it ' s a
repair . It ' s not necessarily --
25 BUILDING INSPECTOR VERITY: Leslie, I think
you ' re missing that . I think the whole section of
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 the house in the Melnicks, and the contractor can
correct me if I 'm wrong, was rebuilt .
3 BOARD MEMBER WEISMAN : Yeah.
BUILDING INSPECTOR VERITY: It wasn ' t just
4 the foundation under the house .
BOARD MEMBER WEISMAN : There was a portion
5 toward the water that was rebuilt but that was
part of our variance . That was fine .
6 BUILDING INSPECTOR VERITY: Okay.
BOARD MEMBER WEISMAN : You know what I 'm
7 saying?
BOARD ASSISTANT KOWALSKI : We ' re talking
8 about others too though. Other than this one .
BOARD MEMBER WEISMAN : We ' re not talking
9 about just the Melnick ' s case .
CHAIRMAN DINIZIO: Linda is right . We have to
10 be more specific while maybe more general . I
don ' t know which way it is . We have to work that
11 out .
BOARD MEMBER WEISMAN : The point is to avoid
12 circumstances where both you and the property
owner or their representative don ' t have to come
13 back to us .
CHAIRMAN DINIZIO : I 'm more concerned about
14 having to hire an engineer for something that may
not be necessary. That if everybody comes to us
15 with a, they want a replace in kind and every one
of those people has to give us an engineer ' s
16 report, i . e . dig up next to their foundation so
the engineer can certify it because I certainly
17 would want to see what ' s there, that costs a lot
of money.
18 BOARD MEMBER WEISMAN : Well, you know what . I
think this is a very valuable conversation . Maybe
19 we can continue at our work session or something
so we can work out the details and maybe bring
20 Mike into the discussion too and we can take it
from there . We understand what the intent is . In
21 some cases, an upfront engineer ' s report would be
valuable and useful and necessary depending on. the
22 scope of the proposed projects . In other cases , it
would probably be unnecessary.
23 CHAIRMAN DINIZIO: I think we can do that
during the course of our hearing . We can say, I
24 don ' t think, maybe we need an engineer ' s report .
But we may not need one for every application .
25 BOARD MEMBER SIMON : Before we get to the
hearing, there ' s another way of doing it . We can
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 say, obviously you don ' t want to burden people
with the expense of an unnecessary engineer ' s
3 report . On the other hand, what we have is -- you
can put the choice and make it very explicit, that
4 the choice is up to the applicant and if it turns
out to be something that would not have been built
5 but for the lack of engineer ' s report than they
are the ones that have to take the responsibility
6 and the full consequences so we won ' t get into the
as built situation . That in good faith they
7 didn ' t have an engineer ' s report, they couldn ' t
have known and then they built the thing . Again,
8 we ' re not talking about this property. If there ' s
notice up front that the person has a choice, you
9 can be safe and have the engineer ' s report but
you ' re taking a risk if you don ' t because it might
10 turn out to be one of those cases which should
have been presented at the beginning .
11 BUILDING INSPECTOR VERITY : I would assume in
a case like that with any type of old foundation,
12 worst case scenario, that there ' s a good
possibility that this could come down and a visual
13 inspection will go a long way. As Leslie knows,
you can pretty much -- you know, what you see on
14 the surface is what you get . You can tell by that .
BOARD MEMBER WEISMAN : Yeah.
15 BUILDING INSPECTOR VERITY: A good engineer
and architect will know at that point in time .
16 You really don ' t have to dig too deep into it to
see what you have .
17 BOARD MEMBER WEISMAN : Jim, this is unusual .
We usually deliberate two weeks from now on a
18 decision but I 'm going to ask whether or not my
colleagues think it ' s appropriate in this
19 particular case to vote at this point for a
reversal?
20 CHAIRMAN DINIZIO: I got to tell you, I would
prefer to see the decision written. I don ' t know
21 who ' s it is .
BOARD MEMBER WEISMAN : It ' s mine .
22 CHAIRMAN DINIZIO: I know it ' s two weeks but
I think we ought to at least deliberate on
23 something that we have written down on a piece of
paper . It ' s something that we always do .
24 BOARD MEMBER WEISMAN : In general I support
deliberation and waiting the two weeks but seeing
25 that this is so straightforward, not the way it ' s
written, but the decision seems pretty --
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO: Do you have any stuff
that you wanted to hand up to us? Just bring all
3 of that stuff up here .
MR. MELNICK: Maybe I ' ll offer --
4 CHAIRMAN DINIZIO: You can say.
MR. MELNICK: Also I 'm going to give you
5 this . I don ' t know if you got that .
CHAIRMAN DINIZIO: Are we done with Mike?
6 BOARD MEMBER GOEHRINGER: Yes . Thanks, Mike .
BOARD MEMBER WEISMAN : Thanks, Mike .
7 BOARD ASSISTANT KOWALSKI : Okay. Could you do
that through the microphone and mention that
8 please?
MR. MELNICK: One of the issues . -- I received
9 a fax from Linda from Tom McMann from the Soil and
Water Conservation District concerning erosion on
10 the property and because the project has stopped,
his concern is there ' s erosion on the property,
11 okay. We -- I spoke with him yesterday or the day
before -- the day before yesterday. We had a
12 lengthy conversation . He made suggestions . We
remedied the immediate concerns but one of the
13 biggest concerns from Suffolk County is the
duration of any disturbance of soil on a project .
14 So my request is since you seem to be in favor of
this and since Suffolk County also feels that
15 lengthening the duration could be harmful to the
environment, to allow us to proceed and I have a
16 letter from him as well that validates what I ' m
discussing . So I would ask that if you are in
17 favor, perhaps allow us to proceed with the
project .
18 BOARD MEMBER WEISMAN : It ' s my finding to
write the draft and if my colleagues are willing
19 --
BOARD MEMBER GOEHRINGER: I don ' t have any
20 objections .
BOARD MEMBER WEISMAN: I can do that within
21 twenty-four hours and email it to everyone .
BOARD ASSISTANT KOWALSKI : You can also do it
22 by hand if, you know, if there ' s time later . We ' ll
be here most of the day.
23 CHAIRMAN DINIZIO: I don ' t mind doing it at
the end of the day.
24 BOARD MEMBER WEISMAN : I ' ll do that .
CHAIRMAN DINIZIO: If we just have something
25 in writing that we all agree to and I don ' t
anticipate that we ' ll disagree with anything but I
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 am concerned about voting on something, sir, and
then writing it down. That ' s the problem.
3 MR. MELNICK: I understand that .
BOARD MEMBER SIMON : Our concern with
4 creating precedence for future applicants when we
find that we are using more informal procedures,
5 in this case, for the very, very best of reasons ,
I can predict that it won ' t be long before we ' re
6 going to get some that aren ' t quite so
straightforward in which the argument is, I need a
7 decision now and you did it before and so we have
to be really careful .
8 MR. MELNICK: And I understand all your
points about future applications that you ' re going
9 to probably resolve all that .
BOARD MEMBER WEISMAN : Normally, I 'm the one
10 who ' s constantly saying we need to deliberate .
BOARD ASSISTANT KOWALSKI : Mr. Melnick, I ' ll
11 take those copies now .
BOARD MEMBER WEISMAN : This is quite unusual
12 for me to make this recommendation . I ' ll abide by
whatever everyone else wants to do . I just felt
13 that holding them up -- if we can word this in a
way that ' s satisfactory, I 'm willing to work on
14 something today. Jim, what procedure do you want
to follow?
15 CHAIRMAN DINIZIO: I don ' t mind voting on it
at the end of the day. I know Gerry has to leave
16 early but I don ' t mind. I ' ll stay to midnight
tonight . Doesn ' t make much difference to me . I
17 don ' t believe there ' s a no vote sitting up here .
I, for one, would like to just make sure we have
18 something in writing.
BOARD MEMBER WEISMAN : Well, depending on how
19 the time goes today, if we even have a break, I
can sit down and start writing it .
20 CHAIRMAN DINIZIO: I don ' t anticipate that .
MR. MELNICK: It ' s fair to say once you have
21 that vote, then we can proceed with the project?
BOARD MEMBER WEISMAN : Yes .
22 BOARD ASSISTANT KOWALSKI : Well, it has to go
to the Building Department . He ' ll tell you that .
23 MR. MELNICK: I understand but he ' s here and
he understands also what ' s happening .
24 BOARD MEMBER WEISMAN : The point is, we ' ll do
everything we can to expedite this for you .
25 MR. MELNICK: I appreciate that . Thank you .
Anything else that you need from me?
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO : Have you said everything
that you need to say?
3 MR. MELNICK: Sometimes there ' s just a point
where you don ' t need to say anything else .
4 CHAIRMAN DINIZIO: I hit that point right
about now. So I ' ll entertain a motion that we
5 close this hearing .
(See minutes for resolution . )
6
Hearing #6044 - Mazur
7 CHAIRMAN DINIZIO: Okay. J. and A. Mazur .
Gerry?
8 BOARD MEMBER GOEHRINGER: As soon as I find
the legal notice, I ' ll read it .
9 CHAIRMAN DINIZIO: Gerry ' s going to read the
legal notice .
10 BOARD MEMBER GOEHRINGER: "Request for
Variance based on the Building Inspector ' s May 7 ,
11 2007 Notice of Disapproval, based on the ZBA #5909
issued August 17 , 2006, based on Building
12 Inspector ' s April 3, 2006 Notice of Disapproval
citing Sections 280-122A and 280-124 ) , for
13 approval of the location of the new foundation at
less than 35 feet from the front yard line and
14 less than 35 feet from the rear yard line, after
demolition of the foundation of the exiting
15 dwelling and related construction . Location : 3200
Camp Mineola Road, Mattituck; CTM 123-5-36 . 2 . "
16 I have no discussion on this . I ' ll wait for
counsel .
17 MS . MOORE : Okay. Thank you . Good morning .
I have with me today Bob the builder, Bob from
18 Inland Homes and actually, I have -- it ' s a very
nice neighborhood -- I have, I always commend
19 neighbors that come and support because you see it
so rarely in this forum. What I gave you is just
20 handwritten description which Bob provided for me
-- I think he didn ' t think I would understand.
21 This actually does help a great deal . Very
similar to your previous application, this
22 property received a variance for setbacks and I
gave you the foundation survey which shows that it
23 does conform to the previous zoning variances that
were granted. Everything -- all the setbacks are
24 in compliance . What happened here is -- I think
in the previous hearing, you did everything that
25 was possible to, presumably, keep the foundation
exactly as it was and the first floor . There were
15
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 significant alterations to the first floor planned
and new construction of the second floor and
3 additions because there was a lot of new
construction here and you felt that given the
4 circumstances and the property and the setbacks
and the fact you had three roads here, that it
5 warranted being granted the variances that were
requested. They began their construction and they
6 were relying on Young and Young ' s survey, the
elevation, the flood elevation certificates that
7 were based on the Young and Young survey and at
one point in time, the Building Department,
8 correctly, I believe, stopped and said, "wait,
this just doesn ' t look right . " Based on what they
9 know are the flood zones on this street on the
other homes because from what I can tell, I know I
10 had several variances along Camp Mineola Road,
across the street, just about every house on Camp
11 Mineola in this area has either been reconstructed
or a new construction . The Building Department
12 asked the owner to please get another, get a
verification of flood elevation certificate . Bob,
13 at that point, hired Ken Wochek, who ' s the
surveyor on this . You have his survey. And they,
14 in fact , did discover that there was a FEMA issue
and because of the FEMA issue, the difference in
15 the foundation was a 16 inch alteration to the
existing foundation . And that ' s what Bob drew for
16 me here . The original foundation is still there .
The difference between the FEMA compliance and the
17 non-FEMA compliance was raising the foundation by
the 16 inches . Also filling in the foundation. It
18 had been dirt . Parts of it he describes are on
piers that was the back of the old house . Part of
19 it was on slab . Part of it was a garage . So there
was a mixture of foundations here . But the bottom
20 line is that the foundation to be in compliance,
as it is shown today, had to be filled and had to
21 have the flow through grate . All of that
necessitated some reconstruction or reworking of
22 the existing house . What Bob found, at that
point, is that in order to fill with soil, the
23 property, as you know from going over there at
least once, maybe twice, it ' s very wooded. It has
24 access to the back of the property, is somewhat
limited because Allen Drive is a private road.
25 They had already committed to the neighbors on
Allen Drive that they would not be using that road
16
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 for construction and they had promised that and
they were keeping to their promise . Faye Court is
3 not even accessible the entire way. So they were
limited in their access to this property. They
4 couldn ' t -- the cost of raising the house to redo
the foundation was just, one, extremely cost
5 prohibitive but, secondly, almost impossible
because of the trees and the equipment access ,
6 there was no way to accomplish this FEMA
compliance other than to demolish the first floor
7 wood and repair the foundation -- alter the
foundation with the 16 inches and then new
8 construction, new wood. Obviously, at that point,
you ' re previous Zoning Board decision says
9 alterations or changes to the prior decisions
means coming back to you . I 'm glad that you ' re
10 considering maybe doing a little bit of word
snipping or putting some language in your
11 decisions so that these type of relatively -- I
don ' t want to say minor because certainly the
12 first floor . There was a lot of construction . We
don ' t have environmental issues at all here . We
13 have just practical setback issues . The standard
setback issues . It ' s in kind and place precisely
14 and again it ' s a foundation alteration that is
discovered after the fact, after the Building
15 Department had issued a permit and the owners
tried everything possible to do it right the first
16 time . With respect to certifications of engineers
or architects and the rest, it ' s good. I think,
17 generally, most owners get that off the --
generally they look to the architect or the
18 engineer to look at the condition of the house to
see if it ' s suitable structurally for adding
19 second floors or alterations . But the bottom line
is that all the certifications in the world -- you
20 end up having to sue them to get compensated.
Quite frankly people just don ' t want to get in the
21 middle of a lawsuit . It ' s to their best
professional opinion certainly when construction
22 takes place, a lot of things are discovered that
can ' t be seen or are latent defects that can ' t be
23 identified. So it is on a case by case basis .
Certainly, I think that ' s your prerogative . I
24 would like to keep it that way with this Board
that you do it on a case by case basis because I
25 think to require it as part of your application --
sometimes -- you try your best . But people are
17
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 human and professional opinions are professional
opinions to the best of their ability. But
3 things just can ' t always be uncovered. In any
case, I think I ' ve explained how we got here . We
4 again, request, that the same variances be granted
and the only difference being that the 16 inch
5 difference in the structure be permitted. It still
meets the height requirements under the code so
6 we ' re not exceeding any height requirements . The
difference, obviously, is the volume -- 16 inch
7 volume difference in the house . But as you can
see, the setbacks are relatively generous setbacks
8 here . Allen Drive is a 15 foot setback. Faye
Court is a front yard, a rear yard but the bottom
9 line is that every house along this street , I
know because I ' ve done many of them, have gotten
10 variances, particularly for rear yards because
most of them try to meet the front yard setback
11 but in doing so, you can ' t meet the rear yard
setback. It doesn' t, the code just does not
12 address these preexisting, nonconforming lots to
the level that ' s needed. We ' re here, we can
13 answer any questions you might have .
BOARD MEMBER GOEHRINGER: Could you just
14 briefly again sketch -- let me . Just answer this
question.
15 MS . MOORE : Sure .
BOARD MEMBER GOEHRINGER: This survey that
16 you have furnished, that came from the builder, is
an in place, in kind survey?
17 MS . MOORE : Yes, just the foundation .
BOARD MEMBER GOEHRINGER: There is no
18 variance from the existing decision that was made
except for the height of the foundation and a
19 demo?
MS . MOORE : Well, it wasn ' t demo with the
20 foundation . Remember, the foundation was only
altered.
21 BOARD MEMBER GOEHRINGER: Right .
BOARD MEMBER WEISMAN: The house was demo .
22 MS . MOORE : House -- first floor demo, yes .
The first floor of the house walls, yes .
23 BOARD MEMBER GOEHRINGER: The foundation now
is going to be filled in?
24 MS . MOORE : Yes , it actually has been, I
think.
25 MR. HILTZ : No, not yet .
MS . MOORE : Oh, it hasn ' t yet? I 'm sorry. I
18
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 didn ' t walk on there to look at the whole --
BOARD MEMBER GOEHRINGER: For the record,
3 that ' s Robert Hiltz, the builder, Inland Homes .
MS . MOORE : Bob, you can describe -- I don ' t
4 think we ' ve done the fill yet and the grates but
the foundation has been designed for the grates .
5 MR. HILTZ : Yes, they ' re all in place .
BOARD MEMBER GOEHRINGER: How far are those
6 grates down, Bob?
MR. HILTZ : The top of the grates are 16
7 inches down from the top of the foundation and we
have to fill the crawl space even with the bottom
8 of the vents . And then the finished fourth floor
would be even with the bottom of the vents and so
9 will the finished grade on the outside of the
house . Reason being we ' re in the flood zone
10 there . So if the water ever got up that high, it
would flow in and flow out . That ' s the reason we
11 have to fill the crawl space .
BOARD MEMBER GOEHRINGER: How much of the
12 crawl space is it of the total foundation? Is it
the entire foundation?
13 MS . MOORE : Except the garage .
MR. HILTZ : Yes, 'the entire house is the
14 crawl space .
MS . MOORE : Under the garage too?
15 MR. HILTZ : No .
MS . MOORE : Slab .
16 BOARD MEMBER GOEHRINGER: Thank you.
CHAIRMAN DINIZIO: Leslie?
17 MS . MOORE : I would, just to be safe when you
asked me that question, this is an existing
18 conditions foundation . If it ' s deviant by an inch
or so -- I don ' t have it in front of me so I would
19 ask that the variance, if it ' s reissued based on
these setbacks that are on this plan .
20 BOARD MEMBER GOEHRINGER: That ' s what I was
saying because I thought there was a deviation .
21 One or two inches on way or another and that was
the purpose of my question.
22 MS . MOORE : There might have been . I think it
was like point --
23 BOARD MEMBER OLIVA: Four inches .
MS . MOORE : Four inches, yes, thank you . I
24 think it ' s just a question of how the surveyor
measures . At one point, it was probably to a --
25 one wall versus the foundation . So, to be safe, I
would say, let ' s use this four inch difference .
19
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD MEMBER GOEHRINGER: I think it was on
the Faye Court side if I 'm not mistaken .
3 MS . MOORE : I believe you ' re right , thank
you .
4 BOARD MEMBER GOEHRINGER: That was the
purpose of my question .
5 MS . MOORE : Thank you . I appreciate it . I ' m
sorry. Leslie, you were going to ask a question .
6 CHAIRMAN DINIZIO : Okay. Leslie, you all set?
BOARD MEMBER WEISMAN : I don ' t really have
7 questions about -- I think you described the
circumstances very fully, very completely. I
8 suppose this builds a little bit upon the previous
conversation with the applicant just before you .
9 Procedurally, when in the field, because in the
field things always happen that are not
10 predictable on paper, when that does happen, it ' s
sort of up to hit or miss as to when or if or how
11 it ' s discovered and by whom. It could be the
homeowners . It could be the builder . It could be
12 the surveyor . It could be the Building Department .
Sometimes we wind up in this situation. However,
13 just for the record, I think when we continue this
discussion about things that unfold in the field
14 that are not a part of the variance, that we ought
the look at, perhaps, an interim procedure about
15 accountability. Who ' s responsible for
notification? When you discover that something
16 needs to be changed from what a variance --
whether it ' s the applicant or the builder being
17 responsible for consulting with the counsel or
with the Building Department to resolve the matter
18 and to inform our office . Somehow or another it
seems to me that this is just too much, catch if
19 catch can, when and if .
MS . MOORE : Yeah . I think that might also be
20 an internal issue because I know that in this
instance -- and Bob, you can correct me if I 'm I
21 wrong -- I 'm trying to remember the sequence . It
was discovered and the plans were actually
22 submitted to the Building Department with the
alteration of the 16 inches and. they acted on that
23 and then the Building Department stopped it . So I
think -- am I correct in that?
24 MR. HILTZ : Yes .
MS . MOORE : So, it ' s very difficult . I think
25 the prior applicant described the same thing . That
everybody in good faith tries to correct it and I
20
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 know the the Building Department is not trying to
do anything to hurt the applicant but at one point
3 or another, it ' s deemed like, well, now what? You
told us to correct it . We corrected it .
4 BOARD MEMBER WEISMAN : I understand that .
What I 'm trying to say is, you know, what happens
5 in some circumstances is, and I 'm not saying
that ' s the case here, the homeowner says , we
6 didn ' t know. The architect says , I didn ' t think
there was anything wrong when I discovered that
7 the studs were just too rotted. So we can ' t
sister them up --
8 MS . MOORE : That ' s very common .
BOARD MEMBER WEISMAN : Then the survey will
9 say that information is accurate . So there ' s sort
of a passing along of responsibility and
10 accountability under certain circumstances which
makes it time consuming for the property owner to
11 have to keep going back and we ' re hearing things
again. So, I don ' t want to say anymore about it
12 because it,' s not absolutely specific to just your
application. It ' s simply a part of the discussion
13 we, as a Board, need to have with staff and with
the Building Department about how we might better
14 handle internal communication when things happen
in the field that are not predicted and therefore
15 will create problems with the variances that we ' re
granting.
16 MS . MOORE : And I think just providing that
extra language in your decisions for unanticipated
17 change that is not a significant change to the
variance request . It ' s not -- really isn ' t even
18 material to your variance request because a 16
inch foundation change, I don ' t think in this
19 instance, would have made any difference had it
been known from the beginning because there ' s no
20 other place to put this house . It was made
conforming to the front yard but impossible to
21 make conforming anywhere else .
BOARD MEMBER WEISMAN : Well, you know, in
22 this case, you ' re right . But in other cases, if
we had seen a total demo on a house that we were
23 assuming was going to be rebuilt where it was , we
would not have granted the variance in that
24 location. And that ' s the point .
MS . MOORE : I know. I ' ve been there . I ' ve
25 seen those before .
BOARD MEMBER WEISMAN : I know you have .
21
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MS . MOORE : I think there ' s a big difference
between those .
3 BOARD MEMBER WEISMAN : It ' s one thing to say
we ' re reconstructing what we have . It ' s another to
4 say we ' re tearing everything down and starting
over in which case, the slate is kind of clean .
5 You can change the setbacks at that point . You
can alter foundation at that point and you can
6 become perhaps even more in compliance in some
circumstances . So that ' s part, again, of this
7 ongoing dilemma .
MS . MOORE : I 'm glad you guys are all putting
8 your thinking caps on to try to -- I mean there ' s
always the extremes . Unfortunately, we all know
9 which extremes you ' re trying to address . It ' s the
middle, the gray area that ' s always so frustrating
10 because for him, all the materials have been
ordered and are sitting there and just like your
11 prior applicant, everybody is poised to continue
and it ' s a real financial hardship and
12 coordination hardship for a builder to be stopped
and waiting.
13 BOARD MEMBER WEISMAN : It ' s a problem for the
builders . It ' s a problem for the environment . It ' s
14 a problem for the homeowner . It ' s a problem for
everyone .
15 MS . MOORE : Absolutely. Yes, the soil that ' s
usually --
16 BOARD MEMBER SIMON : Delays are the most
serious thing that can happen. The whole thing
17 can be stopped altogether . I think you ' re a little
bit optimistic about whether we can adopt language
18 that is general enough to cover the cases that you
would anticipate, yet specific enough so that
19 people know exactly what they have to do without
leaving out other kinds of cases . We ' re going to
20 have problems with interpretations but fairly
careful drafting .
21 MS . MOORE : Right . But there is still with
communication, the Building Department, they are
22 -- I appreciate that the Building Department has
to deal with things in a black and white world.
23 They don ' t usually deal in the gray. That ' s their
role . Code, not to code . That ' s there role . But
24 there is always an amount of -- I don ' t want to
say discretion but -- common sense that ' s applied
25 and I think that the Building Department, with
your guidance, can apply that common sense without
22
1 ZONING . BOARD OF APPEALS - JUNE 28 , 2007
2 going astray. That really has nothing to do with
this application . We ' re here and we would like the
3 variance .
BOARD MEMBER WEISMAN : Thank you for
4 indulging my long winded --
MS . MOORE : That ' s all right . We can talk
5 about this indefinitely.
CHAIRMAN DINIZIO: Michael, anything?
6 BOARD MEMBER SIMON : I have no questions .
MS . MOORE : Okay, thank you .
7 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: I just want to say, if
8 you ' re looking at a raise of 16 inches, didn ' t
anybody think of looking at the FEMA maps ahead of
9 time?
MS . MOORE : There were -- no, they did. The
10 surveyor, Young and Young had the Fema elevation,
the elevation at the field incorrect . I don ' t know
11 what happened whether it was a faulty equipment
when they were doing it, whatever . If you look
12 back at the survey in your file, it was in error .
Nobody -- things happen . We don ' t know where the
13 error occurred and that ' s what prompted it . But it
didn ' t, unfortunately, you know, here we are
14 months later.
CHAIRMAN DINIZIO: Okay. So I 'm just going
15 to sum this up . You ' re asking us basically to
grant you the variance we granted before with a 4
16 inch deviation on the Allen Road side 15 ' 5" to
15 ' 2" .
17 BOARD MEMBER OLIVA: 15 ' 6" to 1512" .
CHAIRMAN DINIZIO: 15 ' 6" to 1512" . And on
18 top of that, you had to fill the building another
16 inches higher due to the FEMA map which does
19 not require you to ask us for any further
variances other than the ones you received from us
20 prior to this; that ' s correct?
MS . MOORE : Yes .
21 CHAIRMAN DINIZIO : Anybody else have any
questions? Anybody in the audience wish to make
22 comments on this?
MS . MOORE : They ' re all in support . Just
23 shake your heads .
CHAIRMAN DINIZIO: Bobby, do you have
24 anything you need to say?
MR. HILTZ : No .
25 CHAIRMAN DINIZIO: Okay. I ' ll entertain a
motion that we close this hearing .
23
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 (See minutes for resolution . )
3
Hearing #6051 - BREWER' S YACHT YARD.
4 BOARD MEMBER OLIVA: "Request for a Variance
under Section 280-116, based on the Building
5 Inspector ' s May 7 , 2007 Notice of Disapproval
concerning a proposed accessory (pavilion)
6 building at less than 75 feet to the bulkhead, at
500 Beach Road, Greenport . "
7 Yes, sir . And you want to keep that open for
the use of just your marina occupants?
8 MR. ANGEL : I 'm sorry, ma ' am?
BOARD MEMBER OLIVA: The use is just for the
9 marina occupants?
MR. ANGEL: Yes, ma ' am.
10 BOARD ASSISTANT KOWALSKI : We need Mr . Angel
to identify himself for the record first .
11 MR. ANGEL : My name is Ted Angel, Alpha
Consulting on behalf of Brewer Yacht Yard. Good
12 morning, ladies and gentlemen.
BOARD MEMBER OLIVA: Good morning . Sir, do
13 you want to tell us what you ' re going to be using
this for?
14 MR. ANGEL : The pavilion which is basically
just an open area with a roof is going to be used
15 for the relaxation of the marina patrons .
BOARD MEMBER OLIVA: Only?
16 MR. ANGEL : Only, yes, ma ' am.
BOARD MEMBER OLIVA: Well, from looking at
17 it, that ' s about the only place you can put it on
that piece of property.
18 MR. ANGEL : Yes , ma ' am.
BOARD MEMBER OLIVA: The Planning Board
19 certainly is in favor . We received a letter from
them. Let ' s see if any of my colleagues have any
20 questions . I don ' t have any questions .
CHAIRMAN DINIZIO: Gerry?
21 BOARD MEMBER GOEHRINGER: How would you stop
people from the restaurant from using it? Would
22 you post signs for that? Would you -- I mean it ' s
nice to say that it ' s only used for the patrons of
23 the marina . We ' re referring to all those people
that dock their boats there and any friends that
24 they may have?
MR. ANGEL : Yes, sir. It ' s the marina patrons
25 and their guests basically. It ' s just a relaxation
area where rather than stack boats , it ' s a grassy
24
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 area that can be used. It will have a pervious
floor and it will meet all the requirements .
3 BOARD MEMBER WEISMAN : To what extent do you
anticipate -- I understand you ' re going to use
4 gravel --
MR. ANGEL : Yes . It will be a pervious floor,
5 ma ' am.
BOARD MEMBER WEISMAN : Roof runoff?
6 MR. ANGEL : There will be a dedicated dry
well and the leaders and gutters will go directly
7 to that .
BOARD MEMBER WEISMAN : Because I didn ' t
8 recall seeing that on the survey.
MR. ANGEL : It ' s on the plan.
9 BOARD MEMBER WEISMAN : You will be proposing
to include that? So you have no objection to that
10 as a condition of approval?
MR. ANGEL : Not at all .
11 BOARD MEMBER WEISMAN : That ' s all .
CHAIRMAN DINIZIO: Michael?
12 BOARD MEMBER SIMON : As you know, there have
been concern raised by the LWRP coordinator
13 regarding the setbacks both from the wetland area
on one side' and the bulkhead on the other side
14 that you ' re here for the variance . Can you explain
why it needs to be as close as it is to the
15 bulkhead, 13 feet from the bulkhead is only about
7 or 8 feet from the walkway. Could it be further
16 back on that lawn?
MR. ANGEL : We have DEC approval for this
17 project and there was a small variance granted.
The concern is that on the other side where the
18 setback is larger, there is some vegetation, not
much to speak of because there is a trench and
19 right on the other side is a paved parking lot
belonging to Southold Town that hasn ' t actually
20 observed any setbacks at all but it ' s there . So
the conditions being what they are, the DEC
21 decided that they would prefer to have the larger
setback on that side and since at the point, at
22 the most forward point, the corner of the pavilion
is actually well beyond one hundred feet back from
23 the bulkhead and the public waterway. That side
setback and, with all due respect, that side
24 setback is almost irrelevant, I would say, in this
particular case because the slips , the entire
25 indentation of the marina is on Brewer property.
It has nothing to do with the public areas . As a
25
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 matter of form, we ' re just complying with all the
requirements here but that really does not apply ,
3 according to the code and I have spoken to the
supervisor about it . I ' ve had some discussion
4 with the Building Department about it but they say
they ' re locked in because of the code saying
5 bulkhead and being non specific . This is hundred
and some odd feet back, a hundred and forty feet
6 almost back from the public waterway where the
bulkhead on this property separates it from the
7 public area where the public can navigate it .
BOARD MEMBER SIMON : Let me just get this
8 clear . All bulkheads are on private property
almost . Everybody ' s house along the bay and the
9 sound. Are you saying that the waterway against
which this, the bulkhead is close, is not public
10 waterway? That that is owned by Brewer ' s Yacht
Yard?
11 MR. ANGEL : Yes . That is developed as slips
from a long time ago so basically this is not an
12 area where the public can just come in and
navigate because it is privately used by marina
13 patrons . Since also, in conjunction with your
question, I would add to that that the setback
14 being as narrow as it is has absolutely no impact
because there ' s a blue stone walkway. So there is
15 no environmental concern . We ' ve also complied
with a suggestion by the DEC, we ' ve indicated on
16 the plan for plantings . So, it ' ll be basically a
very clean cut process and structure and basically
17 it ' ll be totally noninvasive and impact free of
any concerns that anyone should have . It ' s just
18 that wording in the code, and the Building
Department agrees, the wording in the code ties
19 their hands because they have to say, well, it ' s a
bulkhead. If it were 250 feet back on private
20 property, it ' s still a bulkhead. So the code is
very broad in this particular sense . My
21 understanding is that there will be some revision
at some point in time but basically some measure
22 of discretion, I would hope, would be given . to all
the talented and capable people in the departments
23 so that when they see this, they know it shouldn ' t
really apply. But we ' re here because it is so
24 broad in its scope .
BOARD MEMBER SIMON : It ' s as though, as far
25 as the facts of the matter go, it ' s almost as
though that waterway would be like a pond that was
26
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 within the boundaries of some property.
MR. ANGEL : It ' s affectively a basin, a
3 rather large basin .
BOARD MEMBER SIMON : Because it ' s continuous
4 with the bay that it leads• to that end unit?
MR. ANGEL : Yes, exactly, sir.
5 CHAIRMAN DINIZIO: Okay, Michael?
BOARD MEMBER SIMON : Yes .
6 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: I don ' t think I have
7 anything else . I wish your neighbors next door
would keep as good care of their property as
8 Brewer Yacht Club .
MR. ANGEL : Thank you, ma ' am.
9 BOARD MEMBER OLIVA: It looks terrible . I
have no further questions .
10 CHAIRMAN DINIZIO: Okay. I ' ll ask if anybody
in the audience would like to say anything for or
11 against this application . Mr . Angel, do you have
anything else you ' d like to add to this?
12 MR. ANGEL : No, sir .
CHAIRMAN DINIZIO: I have nothing . Hearing
13 nothing, I ' ll entertain a motion that we close
this hearing .
14 (See minutes on resolution . )
15 Hearing #6048 - Ragusa .
CHAIRMAN DINIZIO: Next hearing is Paul and
16 Cheryl Ragusa . Gerry is going to read the legal
notice .
17 BOARD MEMBER GOEHRINGER: "Request for a
Variance under Section 280-116A, based on the
18 Building Inspector ' s May 20 , 2007 Notice of
Disapproval concerning a proposed additions and
19 alterations to the existing dwelling at less than
100 feet from the top of the bluff adjacent to the
20 Long Island Sound, at 1600 Hyatt Road, Southold;
CTM 50-1-6 . "
21 CHAIRMAN DINIZIO : Is anyone here
representing the Ragusas?
22 MS . MOORE : I 'm over here .
CHAIRMAN DINIZIO: I 'm sorry.
23 MS . MOORE : I have Mrs . Ragusa here, Don
Philer (phonetic) who ' s the architect and John
24 Bertapi , who ' s the builder . So, hopefully we can
answer all questions with everybody that ' s here .
25 What I handed up to you is -- actually most of it
is already on the plans . If you pull -- these
27
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 plans have the square footages down at the bottom
area for square footages . Don Philer just added a
3 little more clarification, I think, as to how
that ' s broken up . The existing house is full
4 year-round house . First floor is 1620 square feet
existing. The second floor is existing 787 square
5 feet . It contains two bedrooms and one bath. The
design of it , obviously, if you saw it, is
6 somewhat outdated. The views of the waterfront
views can pretty much be seen out of relatively
7 small windows on the second floor . This house
really needs to be renovated, upgraded to current
8 standards . What Mrs . Ragusa with the help of Don
Philer propose is to essentially change the roof
9 line, add additional space on the second floor .
What he provided for me is the additional square
10 footage . That additional square footage will
provide for an additional bedroom, an additional
11 bathroom and just a sitting area porch. You can
see that on the plans . The first floor is
12 remaining, for the most part, the same all
interior alterations . There is a 185 square feet
13 of additional space to the front entrance area and
then there is a corridor leading to the garage
14 which is all landward of -- an addition that is
landward of the existing structure along the front
15 of the property. When they designed this, they
were attempting to avoid having to come in for
16 variances . The design was, at least the belief
that they had and we all had at the time was, that
17 second floor, when you have an existing second
floor and you ' re making an alteration to the
18 second floor, that it would be permissible under
the code because it ' s landward of existing
19 structures . You have the full first floor that is
an existing structure and as long as you step it
20 back a certain amount, and that depends on who you
ask, could be undertaken and you -- because again,
21 you ' re not making any major changes . You ' re doing
a standard second floor alteration and additional
22 -- it ' s equivalent to roof change and obviously,
the side walls for height of this second floor
23 have to comply. John Bertani was prepared to work
on this . They started, they submitted the
24 construction drawings and at that point ,
unfortunately, there was some disagreement as to
25 whether or not we would comply without having to
go to the Zoning Board. We had already, it was my
28
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 understanding that we would comply, Don Philer ' s,
most of the practitioners out here were
3 understanding the landward of existing structure
to allow certain amount of second floor
4 alterations again, to an existing two story house .
We call it a two story house because it has two
5 bedrooms and a bath upstairs . The Building
Department looked at it, I think as a one and a
6 half story. It didn ' t really matter in the long
run because here we are . The only thing that,
7 unfortunately in this instance, I had already
submitted to the DEC, to the Trustees , to
8 everybody that is required to get approval from,
the Health Department . So we spent months going
9 through that review and approval . Obviously, you
know how I work. I bring it to you because we run
10 all the applications concurrently. At this point,
we have all of our approvals and we ' re here to
11 this Board to ask for the variance from the
setback to the bluff in order to be able to make
12 the alteration to the second floor . Mrs . Ragusa
will tell you that when she was looking for a
13 home, she came to this house and saw it was a
substantial house . It needed renovations but
14 because it was not a cottage, that is a tear down,
that is essentially there ' s no house there . You ' re
15 dealing with a vacant piece of property. Here you
have a substantial house and there is a lot of
16 this house that is intended to be retained. John
has not been hired to do more than alterations to
17 the first floor and the new space is primarily, as
I said, the 700 square feet added to the existing
18 780 square feet of existing second floor . You
did, I saw from the thank you, Linda, for
19 forwarding on to us -- we did get response from
Soil and Water . It is a stable bluff . This
20 property will have proper dry wells . That was
certainly something that we originally designed
21 with that intent . It was a condition of all the
other agencies as well . The non-turf buffer along
22 the bluff to be sure that we don ' t have water
running down the bluff and keep it as vegetated as
23 it has been. Aside from that, we meet all of the
other side yard setbacks, setbacks of the house
24 lot coverage, everything. The only variance that,
of course, we need is the one from the bluff
25 because, as I said before, this is the existing
house and we are maintaining the existing house
29
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 with the alterations that are proposed. There is
also along the back, existing stoops and stairs
3 which are being altered to -- when the 'wind --
there ' s a french door that you ' re putting in or
4 slider -- they ' re sliders now and there ' s a
replacement of the back stoop . Aside from that ,
5 the house is staying as is .
BOARD MEMBER GOEHRINGER: And what ' s the
6 setback from the bluff to the stoop?
MS . MOORE : To the stoop is, I know I gave it
7 to you, the survey doesn ' t give it to me .
BOARD MEMBER GOEHRINGER: It ' s showing 17 ' .
8 BOARD ASSISTANT KOWALSKI : It shows 17 .
MS . MOORE : So we ' re cutting back, again
9 we ' re cutting back from what ' s existing .
BOARD MEMBER GOEHRINGER: It is 17 ?
10 MS . MOORE : It is 15 right now . The existing
is 15 . We are cutting back to -- I don ' t have the
11 measurement on this one -- 17 , I believe .
CHAIRMAN DINIZIO: Plus or minus 17 .
12 MS . MOORE : Plus or minus 17 .
BOARD MEMBER WEISMAN : So you are, in fact,
13 increasing the setback --
MS . MOORE : I 'm sorry, we ' re what?
14 BOARD MEMBER WEISMAN : You are increasing the
setback by removing the old stoop; is that
15 correct?
MS . MOORE : No . We ' re decreasing . We ' re
16 making it smaller.
CHAIRMAN DINIZIO: You ' re decreasing the
17 non-conformity.
MS . MOORE : Decreasing, right?
18 BOARD MEMBER WEISMAN : Decreasing the amount
of non-conformity. That ' s what I meant .
19 BOARD MEMBER GOEHRINGER: Let me go over
this . It ' s kind of a busy plan .
20 MS . MOORE : Okay. Well, that ' s why I have the
architect here .
21 BOARD MEMBER GOEHRINGER: The part of the
house that is facing the Long Island Sound on the
22 second story includes what, a balcony?
MS . RAGUSA: Two bedrooms and the bathroom on
23 the --
MS . MOORE : Come on up, you have to get on
24 the record. She has memorized the plan much more
than I have .
25 MS . RAGUSA: Hi . I 'm Cheryl Ragusa .
BOARD MEMBER GOEHRINGER: The back of the
30
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 house which is the house opposite Hyatt Road.
MS . MOORE : I 'm sorry. Back being the road
3 front? The sound front, yes .
MS . RAGUSA: That ' s where the two bedrooms
4 are now . They ' re on the sound side and where I
would create the new bedroom and bathroom is on
5 the street side .
BOARD MEMBER GOEHRINGER: I understand. Is
6 there any balcony on the back side?
MS . MOORE : No . The water side right now it
7 is --
BOARD MEMBER GOEHRINGER: I understand.
8 MS . MOORE : So the proposal is to have the
two bedrooms on either side and then the area
9 between the two bedrooms is a stepped back open
balcony.
10 MS . RAGUSA: Sort of halfway back above the
living room.
11 BOARD MEMBER GOEHRINGER: That balcony faces
the road?
12 MS . MOORE : Water.
BOARD MEMBER WEISMAN : But it ' s not
13 protruding beyond the first floor .
BOARD MEMBER GOEHRINGER: Right, I understand
14 that .
MS . RAGUSA: It ' s setback actually.
15 MS . MOORE : The back wall of the balcony,
because you have the open balcony, the wall, the
16 back wall of the balcony is a 7 foot setback.
MS . RAGUSA: From what ' s existing now.
17 BOARD MEMBER GOEHRINGER: That does not
change the setback from the top of the bluff in
18 any way; is that correct?
MS . RAGUSA: It actually goes further back.
19 BOARD MEMBER GOEHRINGER: I 'm just trying to
include all of this in the decision so we don ' t
20 see you again .
MS . MOORE : If you follow these construction
21 drawings, we ' re good because you actually have the
construction drawings . That ' s what John Bertani is
22 working off of . It works for you right? There ' s no
problem? (Speaking to Mr . Bertani)
23 BOARD ASSISTANT KOWALSKI : You talked about a
7 ' setback. Is that from the bluff?
24 MS . MOORE : No, no . The back of the house .
BOARD ASSISTANT KOWALSKI : Seventeen plus
25 seven so it ' ll be 24 ' back from the top of the
bluff, right?
31
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MS . MOORE : Yes . I 'm measuring the closest
point which is the first floor .
3 MS . RAGUSA: Actually, it ' s 17 ' from this
( indicating) , so it ' s actually further back where
4 the balcony is .
MS . MOORE : You ' re right . The angle of this
5 bluff significantly increases as you head north so
the setback at it closest point at the one corner
6 furthest southwest is the closest point of 17 ' .
Everything beyond that increases because the bluff
7 is on an angle .
BOARD MEMBER WEISMAN : The questions are in
8 part because we have a very small accurate survey.
MS . MOORE : You have in your file a big one .
9 BOARD MEMBER WEISMAN : I don ' t believe we
have -- well, it ' s large on the paper but it ' s not
10 large . We don ' t have a site plan, an architectural
site plan . It ' s just easier to read it on the site
11 plan .
MS . MOORE : Yeah, it ' s because of the buffer
12 that is drawn in . It ' s a little difficult to read.
BOARD ASSISTANT KOWALSKI : Point 40 feet to
13 an inch too is very small .
MS . MOORE : You know why because Joe Indegno
14 (phonetic) put in this huge right of way. This is
part of the title survey.
15 BOARD MEMBER GOEHRINGER: That ' s all I have .
BOARD MEMBER WEISMAN : You know dimensions on
16 this are difficult .
CHAIRMAN DINIZIO: Leslie, you can ask some
17 questions .
BOARD MEMBER WEISMAN : Actually, I think the
18 questions I have were already answered. I do have
just one additional one . You are proposing a two
19 car garage that ' s attached by a breezeway or
something that steps up?
20 MS . RAGUSA: It ' s actually a one car .
BOARD MEMBER WEISMAN: One car, okay. And
21 you have an existing accessory garage as you enter
the property, two car I believe? Will you
22 continue to use that for cars? Are you going to
use that for storage? It ' s there . You ' re not
23 taking that down, in other words .
MS . RAGUSA: Probably, maybe, if we have an
24 extra car, we ' ll leave it down there, garden
storage stuff.
25 MS . MOORE : She has children, so the children
usually end up using a lot --
32
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MS . RAGUSA: No, I don ' t have children.
MS . MOORE : Oh, you don ' t . I have you mixed
3 up with somebody else . I apologize . Got the wrong
client .
4 MS . RAGUSA: I have cats .
BOARD MEMBER WEISMAN : A family you just
5 acquired. I was just curious . I have no other
questions .
6 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON : I have a question.
7 MS . RAGUSA: The reason I wanted to --
CHAIRMAN DINIZIO : Ma ' am, ma ' am, you ' ve got
8 to get up to the microphone .
MS . RAGUSA: I 'm sorry. I 'm not used to this .
9 The reason I just wanted the other garage is
because the property is on a hill so it ' s at the
10 bottom. So if you come in and if it ' s snowing or
raining, you know it ' s a long walk up the
11 driveway. Preferably, I would have rather just
have it there . I don ' t even know what I 'm going
12 to do with the other garage but it ' s there so I
guess storage . Anything else?
13 CHAIRMAN DINIZIO: Michael? .
BOARD MEMBER SIMON : Yes . I 'm happy with what
14 I ' ve heard about the accessory garage and the
second floor . I have a question about the deck.
15 It doesn ' t even appear on the site plan . This is
going to go out some distance beyond the house;
16 beyond this existing stoop apparently. Is this
going to be a grade level deck or raised?
17 MS . MOORE : No, the house -- it ' s a stoop --
the existing stone patio is there .
18 BOARD MEMBER SIMON : The word deck is in the
description, right?
19 MS . MOORE : No . Proposed stoop .
BOARD MEMBER SIMON : I have in my notes an 8
20 foot deck will replace this patio or am I thinking
of another property?
21 MS . MOORE : I think you ' re thinking of
another . Did I write that? Was that an original
22 plan maybe?
BOARD MEMBER SIMON : I 'm looking at the first
23 floor plan .
MS . MOORE : Of the construction drawing?
24 BOARD MEMBER SIMON : Yes . And I 'm also seeing
new stoop brick and then it says --
25 MS . MOORE : New stoop brick on concrete .
MS . RAGUSA: I think what it originally was
33
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 -- right now there ' s a long stone patio that you
walk a few steps down to what I had originally
3 proposed but honestly at this point, I just want
the house, was to make it closer to the house and
4 wider and raised. So in another sense, sort of
change the dimension. Put it further away from the
5 water so when you walk out the door, you don ' t
walk down the steps .
6 BOARD MEMBER SIMON : So you ' re not going to
be extending it closer to the water?
7 MS . RAGUSA: No, the other way . I would
rather shorten it and make it just a little wider .
8 BOARD MEMBER SIMON : I was confused about the
drawings here on the plan .
9 BOARD MEMBER WEISMAN : Eight foot landing.
MS . RAGUSA: Basically, it would be a place
10 where you could walk out and have a table out
there . That ' s without the steps, if that ' s okay,
11 otherwise, I ' ll leave it the way it is .
BOARD MEMBER SIMON : Let ' s see . According to
12 this survey, this is why -- existing steps which
are apparently 5 ' from the edge of the buffer --
13 that ' s going to be removed?
MS . MOORE : Fifteen feet behind the buffer.
14 BOARD MEMBER SIMON : Fifteen . And that ' s
actually going to be made -- the setback there is
15 going to be increased rather than decreased; is
that correct?
16 MS . MOORE : Correct .
BOARD MEMBER SIMON : Okay, then that answers
17 my question.
CHAIRMAN DINIZIO: Okay, Michael? Ruth?
18 BOARD MEMBER OLIVA: Just one point . I think
it was noted in the Soil and Water report that you
19 have kind of a gully forming on the east side of
the property, that there was some debris going
20 down there, that you should be careful not to do
that .
21 MS . RAGUSA: Actually we ' ve been planting .
BOARD MEMBER OLIVA: The planting is on the
22 top . There looks as if there have been brush
pushed down there . Maybe not by you but by
23 somebody else .
MS . MOORE : It ' s possible .
24 BOARD MEMBER OLIVA: Just be careful of that
because you can start eroding that . You ' re in a
25 place where you know bluffs erode rather quickly
sometimes .
34
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MS . RAGUSA: My husband' s a little paranoid .
So he ' s already been out there planting . The
3 Trustees told us to make a buffer so he ' s already
started planting new plants along there according
4 to what they had asked for . But if there ' s
anything down there, maybe it was there from the
5 prior owners .
BOARD MEMBER OLIVA: I think I saw some brush
6 that was thrown down there, sticks or something
that somebody had thrown .
7 MS . MOORE : We ' ll have her husband check it .
MS . RAGUSA: I don ' t walk down there, there ' s
8 poison ivy and stuff .
BOARD MEMBER OLIVA: Just be careful . Poison
9 ivy is supposed to be very virile .
MS . RAGUSA: I know, actually, that ' s the one
10 good thing about poison ivy we ' ve discovered. It
actually holds the bluff . That ' s why I 'm not
11 walking back there .
BOARD MEMBER OLIVA: It does a good job . I
12 have no other questions .
BOARD MEMBER SIMON : One further question,
13 the letter from the neighbor, I just wondered if
you responded to it . The person says that there is
14 a two plus car garage that exists already. Why
would anyone want to disrupt the bluffs or take a
15 chance on losing them for another garage?
MS . MOORE : Well, I didn ' t think -- I didn ' t
16 want to entertain a debate . I don ' t know if
they ' re here or not but I think she explained that
17 during the off season snow or whatever to have a
one car garage near the house makes more sense .
18 BOARD MEMBER SIMON : It ' s not on the bluff
side at any rate .
19 MS . MOORE : No, it ' s not on the bluff side at
all .
20 BOARD MEMBER SIMON : That ' s what I was
inviting you to say.
21 MS . MOORE : Oh. I think it ' s obvious where --
in my presentation, I explained that it is
22 landward of the existing house .
MS . RAGUSA: I basically just wanted one
23 attached garage so when you come in and it ' s night
and winter, I don ' t want to be -- if I 'm coming in
24 alone, I don ' t want to be walking up and entering
a house outside . I ' d rather be able to go right
25 into the house .
BOARD MEMBER SIMON : My understanding is that
35
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 the letter is a little bit off the point because
the garage is not going to be close to the bluff .
3 MS . RAGUSA: I don ' t think they ever saw the
plans or anything .
4 BOARD MEMBER SIMON: Okay.
MS . MOORE : The good part is on the other
5 side Mr . Ludendorf (phonetic) sent a letter in
support . I gave that to this Board before .
6 CHAIRMAN DINIZIO : I got a couple of things
to say. Probably not good for you guys .
7 MS . MOORE : Not good for us?
CHAIRMAN DINIZIO: I understand this
8 structure built beyond the existing structure that
you can do that . I understand our code says that .
9 I don ' t know how it gets interpreted. This is why
after the Walz decision because you ' re still
10 increasing the bulk of this house no matter how
you look at it . Common sense tells you that
11 you ' re adding the garage that you were turned down
for for the same reason . That it ' s within the 100
12 feet of the bluff . So even though you ' re adding,
you ' re building on the opposite side of that
13 house, that entire house is still within the
non-conforming setback of 100 feet from the bluff .
14 So I don ' t know how you increase that without
being turned down by Walz .
15 MS . MOORE : I don ' t want to debate the
section of the code and what it says . I leave it
16 to you to interpret and the Town Attorney to
advise you on what it says . We never got a denial
17 on the garage . We had met, prior to starting our
applications with everyone, with the Building
18 Department with Damon and our understanding was
that we were in conformity with what the code said
19 as far as a landward of the existing structure . I
was at a meeting where you expressed your
20 viewpoint that at the time that legislation went
into effect, the intent was kind of what we ' re
21 doing here with the garage, that if you were
building an addition or a garage or something
22 landward of the house, that that clearly wasn ' t
intended to come in because you already have the
23 whole house in place closer to the bluff . I
wasn ' t around or I don ' t know if I was paying
24 attention when that legislation went into the
books . But for a very long time, the
25 interpretation has been because you ' re not
disturbing the foundation and the majority of the
36
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 house, it is not an impact, in a sense, on the
bluff . You have an existing structure and that ' s
3 why that section of the code was interpreted as it
was . Interpretations change . People come and
4 people go . The code says what it says . How it ' s
interpreted, we have to deal with on a daily
5 basis . Certainly, I know now that even a second
floor alteration because of Walz, if you ' re
6 interpretation is that Walz overrides that section
of the code so regardless of the fact that it is
7 landward of an existing structure, Walz overrides .
I 'm not sure that I agree with that but I don ' t
8 want this case to be the argument or the delay for
that discussion . We ' re here . We can have a drink
9 and debate it all night long . In this instance
here we are and it ' s a relatively minor alteration
10 as far as square footage and so on and again,
there ' s no foundation change . A lot of this house
11 is not even going to be altered so maybe code
needs to be clarified. I think that the Board
12 has , this Board participates in Board revision and
the Town Board discussed the possibility of making
13 a code change so it ' s clearer . So I now know
because of this case but other people out of town
14 come look at the code and they should, in all
fairness to them, also have the ability to read
15 the code and not rely on Walz because Walz is not
a code; it ' s an interpretation . So an out of town
16 architect with an out of town attorney would be
surprised if they had no reason to come to the
17 Building Department except for an application for
a building permit at the end. So I ' d hate to see
18 anybody go through thousands and thousands of
dollars of architectural plans with one idea in
19 mind and then come into the Building Department
based on what the code, you know, how somebody
20 might read the code .
ATTORNEY MEMBER CORCORAN : They can just hire
21 a local attorney though, right?
MS . MOORE : I think that ' s always the best .
22 Thank you for that endorsement . Not me but anybody
else .
23 BOARD MEMBER SIMON : I would like to respond
to this a little bit and I hope you aren ' t
24 misleading any perspective clients . As far as Walz
-- I don ' t want to talk about Walz . What I 'm
25 saying is what_ the code, according to what you ' re
saying what I hope your clients may believe, what
37
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 the code actually says is that these things apply
solely to the fingerprint of the property. The
3 word fingerprint is not in the code . It isn ' t at
all clear that the code says anything different
4 from what the Walz says . I have recently over the
past several months re-read the full debate . I
5 wasn ' t on the Board at the time of the debate and
it seemed to be totally compelling that the code
6 needed to be interpreted. The interpretation which
is what many people said and maybe some of your
7 clients believe even so-called outside architects
believe is simply not founded in the code . I
8 think this is, at least, it ' s an open question .
MS . MOORE : I would again respectfully
9 disagree with that analysis in that there is a
whole provision on the permission of any owner of
10 someone to do renovation, reconstruction, all of
the things even on a non-conforming setback . So
11 there was a very long time and maybe in the last
10 years was the interpretation of volume,
12 horizontal volumes an issue and that ' s where Walz
came in . For a very long time the Building
13 Department took a view that if you maintained the
setbacks out, you could work anywhere up, down,
14 wherever as long as you maintained the
non-conforming, did not increase the degree of the
15 non-conformity.
BOARD MEMBER SIMON : I understand. That, as
16 you can see, is not what ' s in the code . You ' re
talking about past practice of the Building
17 Department . This Walz decision said that the
Building Department so for as they were doing this
18 were not acceptably interpreting the code . We ' re
not talking about what the code says versus what
19 Walz says .
CHAIRMAN DINIZIO: I think we want to leave
20 that .
MS . MOORE : Yeah, I think, because that ' s a
21 long debate .
CHAIRMAN DINIZIO : I know I opened up a can
22 of worms and I understand that fully. I think we
need to get you on the record as to reasons you
23 think you ' re here and we ' re going to make our
decision . That may come up during our decision
24 and I, therefore, wanted to discuss it .
ATTORNEY MEMBER CORCORAN : Can I say one
25 thing? Let ' s talk about where we are now with this
application. We have additions to an existing
38
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 structure and you know that characterization is
not set in stone . You ' re asking for a variance, in
3 essence, a Walz variance, for additions to that
structure within the 100 foot setback. So this
4 Board needs to consider that . Then you need to
consider this new garage structure, correct? There
5 are two issues there . Is it landward of an
existing structure? If it is landward of an
6 existing structure and meets all other setbacks,
it probably does not need a variance or may not
7 need a variance depending on how this Board wants
to read that section of the code . If they decide
8 it is not exempt, they will need to decide whether
they want to grant it a variance, right?
9 CHAIRMAN DINIZIO: I don ' t know that the
Notice of Disapproval actually says that, Kieran .
10 I don ' t know that we can -- you can advise us
certainly -- I don ' t know that we can even have
11 that discussion . My feeling is --
ATTORNEY MEMBER CORCORAN : Which discussion?
12 CHAIRMAN DINIZIO: About the garage .
MS . MOORE : The garage is conforming with
13 respect to setbacks .
CHAIRMAN DINIZIO: It is . They were never
14 turned down for the fact that there was a garage
there . They really weren ' t turned down for any
15 setback.
ATTORNEY MEMBER CORCORAN: I thought I heard
16 you questioning whether you agreed or disagreed
with that determination.
17 CHAIRMAN DINIZIO: I just disagree with the
fact that it ' s exempt from Walz because of ' some
18 certain part of the code . That if it ' s not
conforming and the building is non-conforming,
19 then Walz applies .
BOARD MEMBER WEISMAN: Just talking about the
20 way the notice was written .
CHAIRMAN DINIZIO: I know that I 'm going to
21 have that discussion at deliberations . I didn ' t
want to have that discussion at deliberations if
22 we didn ' t have that discussion here .
ATTORNEY MEMBER CORCORAN : Okay. I don ' t
23 understand how what I said is inaccurate . If
you ' re going to have the discussion about whether
24 or not to apply the exemption or whether or not to
apply Walz , that ' s essentially what I just said.
25 CHAIRMAN DINIZIO: Okay, that ' s fine .
MS . MOORE : Okay. I believe that we ' re
39
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 dealing with issues of setback to the bluff and
whether you ' re applying Walz or the section of
3 code that deals with the setback to the bluff . We
have an existing residence that the intent of this
4 these modifications to the house is not to
demolish the house . It ' s to retain a significant
5 part of the house . In fact, she ' s retaining the
same use as she has presently. The second floor
6 has the two bedrooms and the bath . This is adding
a bedroom and a bath to the overall use of this
7 property; to the use of this house . The setbacks
will not be impacted because, again, there is no
8 change to the foundation. There is no disturbance
to the foundation and John, if you want to put on
9 the record as far as the construction style with
respect to impact, whether it ' s, I think that the
10 issue whether it ' s Walz or the other, the only
setback is -- the only variance that we ' re dealing
11 with is the one setback to the bluff and what our
proposed construction, how that might impact your
12 code and the provisions on maintaining setbacks
for the protection of the bluff . I believe you
13 already have an opinion from Soil and Water which
has stated, for the record, that there is no
14 impact to the bluff here; that you have to be
careful with clippings . But for the most part ,
15 there is no degradation of the bluff through this
proposed construction . John, if you would just put
16 on the record what you ' re alterations to this
house, to the extent that they will impact the
17 base, the foundation and the first floor .
MR. BERTANI : John Bertani . As far as --
18 we ' re not going to disturb the foundation in any
way with this addition on the second floor .
19 Basically, we ' re going to be retaining almost all
of the second floor floor joyce except where that
20 deck area is going because we have to pitch that
area so they will be replaced in that area . And
21 then we ' re just going to be going straight up on
the existing walls of the existing first floor
22 with the second floor and putting a new roof on.
That ' s the extent . And if it ' s approved for the
23 removal of that stoop and to raise that stoop .
That ' s the only work we ' ll be doing on the
24 exterior in the back on the bluff .
MS . MOORE : Thank you, John .
25 CHAIRMAN DINIZIO : Okay. Anybody else have
questions from up here? Ms . Moore, do you have
40
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 anything you would like to add?
MS . MOORE : Not unless you have other
3 questions .
CHAIRMAN DINIZIO : Nope . I guess I can go to
4 the audience . Anybody have anything for or against
this application? Any comments? Okay. Hearing
5 done . I ' ll entertain a motion that we close this
hearing.
6 (See minutes for resolution . )
7 CHAIRMAN DINIZIO: I ' ll entertain a motion
that we take a five minute break. I need a motion .
8 (See minutes for resolution . )
(Whereupon, a break was taken from 11 : 00 -
9 11 : 15 a .m. )
10 Hearing #6033 - Landau
CHAIRMAN DINIZIO: The next hearing is for
11 Adrienne Landau . Is this Michael ' s?
BOARD MEMBER GOEHRINGER: It ' s mine .
12 CHAIRMAN DINIZIO : Gerry ' s?
BOARD MEMBER GOEHRINGER: "Request for
13 Variances under Sections 280-116 (formerly
#100-239 . 4A-1) , based on the Building Inspector ' s
14 January 4 , 2006 Notice of Disapproval, amended
April 4 , 2007 , concerning proposed new dwelling
15 construction, after substantial demolition of
existing dwelling, with setbacks less than 100
16 feet of the top of the bluff adjacent to the Long
Island Sound, at 855 Soundview Avenue, Mattituck;
17 CTM 94-1-7 . "
I am not going to ask any questions because
18 the questions I will ask are basically germane to
the questions that I have difficulty in
19 understanding some of the plans and specifications
to this project .
20 MR. PASCA: Anthony Pasca of Esseks, Hefter
and Angel for the applicant, Adrienne Landau and
21 Ed Fagin. Before I start, I want to introduce
everyone who is here today, who may be speaking to
22 you . This is Stuart Narofsky, he ' s the architect
for the plan and he ' s going to take you through
23 the plans and try to explain and answer any
questions you might have about the plan . Adrienne
24 Landau, the applicant, and Ed Fagin sitting over
there (indicating) and Rob Hermann is the
25 Environmental Consultant . He participated in this
process with Mr . Narofsky, he did the application
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 before the Trustees and he ' s here to address some
environmental questions, if you have them. Before
3 I turn it over to Stu, there ' s a couple of things
I ' d like to hand up . One is Ed and Adrienne went
4 to all their neighbors and they showed them the
plans and they got several letters to support the
5 application. So we have some of those to hand up .
Stuart has also prepared some exhibits for you
6 guys that he ' s going to take you through and he
made some individual size that you can follow
7 along. So I 'm going to hand up some of those too .
I think there ' s six there so maybe one short
8 but -- so what I ' d like to do is have Stuart take
you guys through the design and the history of
9 project a little bit and then we ' ll go from there .
BOARD MEMBER GOEHRINGER: Can I just ask you
10 counselor, did I see a model outside?
MR. PASCA: It ' s right there ( indicating) and
11 he ' s going to make that in a way that you can --
BOARD MEMBER GOEHRINGER: Maybe you can put
12 that on top somewhere?
MR. NAROFSKY: Wherever you ' d like it .
13 BOARD MEMBER OLIVA: Right in front of Gerry.
CHAIRMAN DINIZIO: Gerry is building a little
14 village of these models .
MR. PASCA: Building models .
15 MR. NAROFSKY : May I speak from here as
opposed to the podium?
16 CHAIRMAN DINIZIO: Just speak so she can hear
you.
17 MR. NAROFSKY : By the way, the exhibits that
I have in the model were in hope of clarifying the
18 design intentions and make it as clear as
possible . The understanding, the hope is that the
19 design aspect , the clients requirements and the
way we ' re doing things are not really up for
20 discussion but a mere exhibit of what we ' re trying
to complete as a home for our clients . Back in
21 summer of 2005, Adrienne Landau and Ed Fagin, who
were clients of mine from New York, have a summer
22 place out here for, I think ten years? How long?
MR. FAGIN : Nine years .
23 MR. NAROFSKY: Invited me out to see their
home and property. I have to admit that other than
24 driving to Orient Point, I ' ve never been in this
neck of the woods before . We do build in the
25 Hampton side .
BOARD MEMBER OLIVA: This is nicer .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MR. NAROFSKY : I 'm not trying to stroke the
Board, but I do have to say it was refreshing to
3 see that there was a natural quality and
character . When I first drove up to their
4 property, I couldn ' t find them. So it was a nice
surprise to walk to this property and then upon
5 entering their house and walking around back and
seeing the amazing view and the bluff and
6 everything. Their house, however, and I believe
everyone ' s been there, is in pretty much disarray.
7 It needs a lot of maintenance and tender loving
care . They require additional space, very small,
8 1100 square foot approximately and very little
room for family and friends to come and visit and
9 enjoy the property with them. So it was their
desire initially to roughly increase the size of
10 the home to what programatically came out to
approximately 3500 square feet at the time . Their
11 needs were pretty basic . They wanted a kind of
open loft living space . They wanted a separate
12 master bedroom suite and they wanted guest rooms .
They wanted a studio for Adrienne; she paints ,
13 she ' s an artist and what a great environment for
her to be out and painting and doing her art work.
14 So those were the basic requirements and going
along with that, of course, was look at our view .
15 We want to take as much advantage of the view and
openness as we could. After being retained to
16 begin developing the home, the first thing we did
was come out here and get the codes . Familiarize
17 ourselves with the basic codes ; set backs and
other concerns and unfortunately, to bring up the
18 code we did read was the basic understanding that
if you are renovating or adding, that I could work
19 up and around the existing home because it was
pretty obvious that their home wasn ' t 100 feet
20 back from the bluff nor were we proposing to build
a structure that far back. We subsequently
21 started developing a schematic design and maybe
the easiest thing here is to use the model, if I
22 may . If we look at this from the bluff side, this
is the remains of the existing portions of the
23 house . The existing house is a one-story cape
gable roof . It has a wood deck in the back. The
24 proposal is to remove that wood deck in the back.
The basic idea was to use the existing house as a
25 pedestal in which to perch the new segment of the
home, which in their case was the master bedroom
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1 ZONING BOARD OF APPEALS - J,UNE 28 , 2007
2 suite, and then as a linear extension which
contains the loft-like living space on top, which
3 is living room, dining room, kitchen . And
underneath mud room, guest rooms, bath room and
4 the old area of the house, this back area, living
area kind of studio for Adrienne, one of the
5 remaining bedrooms, a guest room and then a
renovation of the existing bathroom. That ' s all
6 down below . The concept was because of the
existing swimming pool, that while they used it in
7 their front yard, once you were in the front yard,
you really didn ' t appreciate the bluff nor the
8 view, so the concept was to put this as a series
of pavilions leaving this open space from the pool
9 deck so that if you ' re at the pool, you ' re
actually looking through this house and it
10 separates Adrienne ' s studio from the guest
quarters, gives it a little bit of privacy and
11 intimacy, and yet the house is connected across
the top with an enclosed breezeway area that takes
12 them to their master bedroom suite . So it ' s
actually not very box-like, it ' s not very bulky.
13 You can see that it ' s a sensitive pavilion trying
to leave in and take what ' s left of the existing
14 home and makes it part of the composition. The
idea of the slope roof here is we are still
15 investigating the value of this, but we have
intentions of putting solar panels on this roof,
16 if financially the calculations of this size home
makes it worthwhile, sometimes it ' s questionable
17 in a weekend summer home because of the use and
the diminished energy needs to begin with . But it
18 is designed to be somewhat passive in the sense
that there are openings from down below and
19 windows up top to allow for a good draft through
the house and to be as passive as possible . As a
20 matter of fact, this area here, that ' s above the
upper breezeway has operable south facing glass
21 windows and the concept here is really that they
open up when heated to evacuate the hot air and
22 again create a draft through the house . So by
opening up windows in various portions of the
23 house, it actually acts like a chimney. So we ' re
trying to be as passive about it as we can . But
24 obviously with the rest of home, the orientation
is to the water and solar panels is really not the
25 big issue that we ' re dealing with here .
Subsequent to developing the design with the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 client, and just let me point this out, this
little diagram that you have in your packets, just
3 in a simple diagram clarifies the new construction
area, the original house footprints, the portion
4 of the house that we ' re cutting off and then the
portion of the house that remains and part of the
5 new composition . Additionally, so you have a sense
of its impact relative to the neighbors, we went
6 two homes to the east and two homes to the west
and are showing examples of how the scale of the
7 house is really completely appropriate to the
homes that exist on either side . Many of these
8 homes have been added to and renovated already.
They all share almost a common dimension off the
9 top of the bluff and I think you can see in the
scale of things, that in no way are we really
10 sticking out and I think again the breakup of the
house in style and design makes it very compatible
11 with the scale of the other houses . You ' ve also
visited the site and the site is very wooded.
12 This is the house from the front superimposed into
the existing site . You can see that in season, it
13 is quite full of foliage . There ' s the existing
home and the same basic setting . It ' s our
14 intention other than the construction area and
this has been a topic of discussion that our
15 construction access road and the area that we ' re
going to clear for the construction that we ' re
16 doing is going to be as sensitive as it could be .
Subsequent to completing the schematic design,
17 with this model, in fact, with similar renderings
and floor plans , let me just show you the lower
18 level . This is the openness of the lower level,
her studio, guest room and guest rooms and the mud
19 room area on this level, the staircase going up .
We came to the Building Department around March of
20 2006 . My client retained Rob Hermann,
EN-Consultants . We ' ve worked with them on
21 environmental expediting and procedures before,
mostly in the other fork but they were great,
22 they were informative . Rob and I had an informal
discussion about the project and before he took it
23 on the road to the Trustees and the DEC and the
Health Department, his feeling was that we should
24 go meet with the Town and get an early read on
what we ' re doing. So we brought this model and the
25 plans and renderings to the Town. We meet with
Damon back in March of 2006, I believe . We
45
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 presented the ideas in the conference room there,
showed him what we were proposing and at that
3 meeting he made some recommendations . He said it
looks fine . I think that you know you ' re within
4 the spirit of the code, however, I think there ' s a
few things you should do just to clarify what you
5 are doing . Besides adding dimensions to our site
plans to show clearly where the new constructions
6 were relative to the bluff and dimensions , it
roughly, this construction is approximately 30
7 feet, this construction 50 feet . The existing is
very close . He recommended one where we were
8 building a roof top terrace over the existing
first floor, keep it at least one foot back so
9 there ' s no question that any renovation, any
construction, we ' re doing is at least one foot
10 back. The other recommendation he made was that
the proposed patio around the swimming pool be
11 done out of a wood deck construction and not out
of concrete and blue stone . So we made those
12 corrections and it was at that time we gave the
final plans to Rob to start the long road ahead
13 with all the other approvals that we would need on
the case . Just to finalize it and it ' s in your
14 packet so it ' s clear about what ' s taking place
upstairs . There was one question from the field
15 that it -- was the house connected? Was it , in
fact, different structures . In fact, you can see
16 the common living area, the enclosed breezeway and
then the master bedroom and then again the roof
17 over the old structure that ' s now becoming a deck.
So I think that briefly takes you through the
18 process, procedure and the basis designed.
Hopefully, it clarified some of the design aspects
19 for you . One last thing I will mention as far as
any questions about the materials . We ' ve been
20 very successful building on the waterfronts with
mainstream technology. It ' s a nonadhered exterior
21 surface material . It ' s what we call a breathable
wall and in this case proposing to use this lunar
22 panel . Some manufacturers make a similar panel of
layers of wood and resin that ' s very durable . It
23 withstands salt air and wind. It doesn ' t fade . A
great stable material . Tends to have a long
24 lifetime . That in combination with the appropriate
glazing for the wind codes, sub controlled and in
25 this case, metal panel . So it is a very highly
articulate design but we feel that with the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 foliage on either side and the way the composition
is broken down and the use of a lot of the wood
3 elements, it ' s sensitive as far as a modern house
goes .
4 BOARD MEMBER GOEHRINGER: Guess this is my
application. I have to tell you that the many
5 years that I ' ve been on this Board and have had
the honor of sitting at hearings, this whole
6 aspect of having setbacks so close to the top of
the bluff is something that I have great
7 difficulty in understanding particularly with
virtually almost brand new construction . This is
8 virtually almost brand new. You know we ' re
talking about even though we ' re talking about wrap
9 around renovation about an existing house that ' s
been there for 30 years, 35 years maybe, maybe
10 even more . I just think that you can take a more
favorable approach and move this entire
11 construction back probably at least 20 feet to
give us like a 38 foot setback, when I say us, I 'm
12 referring to the Town in question and I 'm speaking
for myself .
13 MR. NAROFSKY : May I answer to that point?
Right now we ' re bordering exactly what you ' re
14 talking about . Our new construction, for the most
part, is 50 feet and beyond .
15 BOARD MEMBER GOEHRINGER: That ' s the opposite
side .
16 MR. NAROFSKY : All of this point is 50 feet
and beyond. This point here is 30 feet
17 (indicating) .
BOARD MEMBER GOEHRINGER: I understand that .
18 Having had relatives that have owned property on
the cliff and at 77 feet they' ve had to move their
19 house back 140 feet, okay. That ' s just an opinion.
MR. PASCA: What I ' d like to do, if we can
20 continue that after, I ' d like Rob to actually take
the Board a little bit through the Trustee
21 process . Every bluff is different . Every
circumstance is different . I think he may have
22 something to say that may, it may impact your
opinion as to that because this is kind of a
23 unique bluff in certain ways and the process
didn ' t end where Stu ended his .
24 BOARD MEMBER GOEHRINGER: I think it ' s a
wonderful plan. I just think it can be altered.
25 MR. PASCA: We can continue that . That ' s
obviously an important question.
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MR. HERRMANN : Good morning . Rob Hermann of
EN-Consultants . I ' ll try to move through this
3 quickly but I think it ' s important to pick up the
process a bit where Stuart left off . I 'm not sure
4 if it will affect your feelings about the project
one way or the other but I think it is important
5 that we note it . I have worked with Stuart before
and we both try to take a very careful and
6 meticulous approach to significant projects like
this where there ' s reconstruction and bringing a
7 little something different to the Town. And I
think sometimes , you know I ' ll admit I ' ve been in
8 situations with clients where we get so far down a
certain road in the planning and then something
9 just reaches out and bites us at the end of the
project and everyone is saying well didn ' t you
10 anticipate that and didn ' t you see that coming and
blah blah blah. So when I got this plan from
11 Stuart originally and we saw that I saw how Stuart
had interpreted the code, and I don ' t want to try
12 to rehash everything from your prior hearing, but
obviously this is another out of town architect
13 that came in and read this definition to construct
no closer than the pre-existing non-conforming
14 setback and work everything landward. And I said
well, ,I said there have been occasions where we
15 get surprised. I said I don ' t want to get
surprised because, first of all, we want to try to
16 do this application in a way that once we get
through the environmental approvals if we can, we
17 don ' t need to come to the Zoning Board. And if
you do need to come to the Zoning Board, you ' re
18 going to have to know what expectations to have .
So I said why don ' t you come out from the city and
19 I ' ll set up an appointment with the Building
Department and we ' ll go find out exactly what
20 we ' re going to need. It is a, it ' s not a real
simple box plan . There ' s some complicated features
21 to it . So Stuart drove out from New York. He
brought all these plans . He brought this model .
22 We went to the Building Department . We met with
Damon. He ' s a very good building plans inspector .
23 I ' ve had very good success working with Damon . So
we went back to him again and we sat down and said
24 are we going to need to go to Zoning Board? If so,
is there anything we can do that we don ' t have to
25 go to the Zoning Board? What can we do? When
Damon looked at the plan, as Stuart testified, he
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1 ZONING BOARD OF APPEALS - JUNE 28, 2007
2 said you need to create this plan in a way that
you don ' t get any closer to the bluff than the
3 existing structure and if you can maintain at
least the first foot of that facade and work
4 behind it, then I don ' t have to send you to the
Zoning Board. At one point during that meeting he
5 said let me just check this and he went into
another office . I assumed at the time it was Mike
6 Verity. He came back, we went back through the
discussion -- this is March ' 06 -- and said okay,
7 we ' re good to go . So we went back from April,
May, June . Stuart went back to the clients . He
8 changed the design exactly in accordance with the
recommendations and information we obtained at the
9 Building Department and proceeded. We had a plan
changed. It was sent to the surveyor Joseph
10 Indegno (phonetic) . I assume the Board has the
site plan. At the time that plan was dated July
11 31, 2006 showing the revised plans and then I
proceeded onto my process because I had warned him
12 you don ' t want to invest the time and energy in
our process only to find out a year from now we
13 have to go to the Zoning Board. So we thought we
had accomplished that . So I then file an
14 application with that plan to the Trustees , to the
Health Department and obtained a non jurisdiction
15 letter from the DEC because the project is , I
should say is landward to the crest of the bluff
16 who ' s elevation exceeds 10 feet above main sea
level . So we obtained all of those approvals and I
17 can speak quickly to the Trustees process in a
second. But we were finished with that process by
18 the end of December . Stuart then moved toward
filing the building permit applications and was
19 quite shocked as were our clients to find out that
despite all the months and energy and time and
20 money they had invested in this based on what we
learned at the Building Department, that here was
21 this letter of disapproval . It ' s my opinion that
Damon still believes his interpretation is
22 correct . Stuart has met out in the field, I think,
correct me if I misspeak, but with Damon and Mike
23 Verity since this time and it has been explained
to us that whatever we were told then and whatever
24 is going on internally with the Town now in terms
of discussion of this section of the code which
25 was made more than clear in the prior hearing,
here ' s were we are . So just to speak to a couple
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 off issues and I think I would focus them on the
LWRP review because I think the LWRP review that
3 the Zoning Board received is similar to what the
Trustees received and it focuses on policies 4 and
4 6 . We did submit an LWRP application for this
application. I think there ' s a couple of things
5 that the Board should keep in mind. One of the
issues pointed out with respect to policy 4 is
6 where there ' s a suggestion by the LWRP that
structures, new structures or existing structures ,
7 should be moved as far away as possible from the
bluff to prevent their loss due to flooding or
8 erosion . Policy 6 speaks to protection of title
and freshwater wetlands . Up until late ' 05 , the
9 wetlands law in the Town was always written to
have the maximum protection being more than 100
10 feet from wetlands . This house is more than 100
feet from wetlands . It ' s not more than 100 feet
11 from the top of the bluff . The reason, as I
understand it, and Kieran ' s heard me testify about
12 this in front of the Trustees before, one of the
reasons at the time the Board of Trustees when Al
13 Krupsky (phonetic) was Chairman of that Board
wanted the wetlands law changed to incorporate the
14 word top of bluff into the wetlands code was
because we had these parcels in Southold that were
15 virgin parcels on the sound and if you came in as
a homeowner, you could, number one, get a non
16 jurisdiction letter from the DEC. Which means you
can do anything you wanted at the top of the bluff
17 without their involvement and as long as you
weren ' t building within a coastal erosion area,
18 you also didn ' t need any approval from the Town
Trustees because in most cases you were more than
19 100 feet from wetlands . So what they wanted to
make sure of was that if you came in with a new
20 house, how could the Trustees, how come some
environmental steward within the Town make sure
21 that somebody didn ' t come in and clearcut the
whole site, build a house at whatever location and
22 then have all of the loss of vegetation cause
sheet flow rundoff down the bluff and then causing
23 the bottom of the natural bluff to collapse where
the Trustees were in a position that then people
24 would have to hire folks like us to come in and
say well we ' ve got this problem now, we need a
25 bulkhead at the bottom of the bluff . We need to
revegetate the bluff, etc . But that ' s not the
50
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 case here . This lot is preexisting. It ' s a
developed lot . There ' s no new clearing proposed
3 and the bottom of the bluff is already retained
with a retaining wall . So there isn ' t that concern
4 here which again was the genesis of the Trustees
wanting to recapture in this case double their
5 previous jurisdiction was to make sure those sorts
of things didn ' t happen. And one of the reasons
6 despite the planning board ' s staff comments , the
Trustees were comfortable granting a wetlands
7 permit to this is because those conditions were
not the case here . So I think that ' s one important
8 thing to note . The other, again, with respect to
policy six is for those same reasons, there ' s
9 nothing happening with this project that ' s going
to negatively impact the waters of Long Island
10 Sound. One of the reasons you have 100 crest of
bluff setback is in case the wetlands are also
11 closer and you don ' t want bad things to happen to
the bluff . You don ' t want the bluff to be enuded
12 as a result of new clearing and you don ' t want
somebody to be compelled to come in and ask to
13 stabilize the bluff as a result of their own
development action. But again that ' s not happening
14 here . This is a developed site, the lot is
cleared and the bluff is in good shape and it ' s
15 retained at its tow . So if your have a house
that ' s sitting in the exact same location as this
16 one, only it ' s bigger going back in this
direction, I challenge you to identify one impact
17 that it could have on the environment different
from the existing house that ' s there as long as
18 you speak to things like septic treatment,
capturing runoff, having a proper drainage system,
19 having elements to this plan that make sure that
you don ' t have that sort of negative impact as
20 inarguably, you would if this were a vacant lot
that were completely wooded and the plan was to
21 come and clearcut the lot and completely change
the environmental dynamic of the property. And
22 that ' s not the case here . The only other concern
which maybe is a concern to the public but
23 probably not as much to the private owner would be
the loss of a dwelling . If you had a natural
24 bluff that was eroding, and I ' ve been in this
situation with the Trustees and they ' ve said well
25 maybe your setback now is okay, but what ' s that
setback going to look like in ten years , fifteen
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 years as this entire bluff continues to transgress
landward? Then you ' d have to come in and ask for
3 a bulkhead which we might not want to give you .
Again, in this case, the bulkhead is already there
4 so that concern is not there for the client . The
mitigation that was included in the plan
5 environmentally, we do have a new sanitary system
that ' s been given Health Department approval . We
6 do have a drainage system designed to capture and
recharge runoff . The Trustees did not impose a
7 non turf buffer at the top of this bluff, but that
is something that could be incorporated into the
8 plan in order to eliminate some of that previously
cleared area . Even though the clients, the owners
9 enjoy that lawn area, obviously, if we ' re seeking
a variance, however we got here, we need to seek
10 the variance, might be some additional mitigation
that could be included in the plan . As I said,
11 all that information may or may not affect how you
personally feel, as Gerry said, about a general
12 issue of setbacks with respect to a house at the
top of the bluff. But I think it ' s important to
13 distinguish some of these characteristics that I
just mentioned and I think it is also important to
14 keep in mind that these clients through Stuart and
myself made a point of coming to the Town over a
15 year ago to make sure that we weren ' t standing
before you today. But here we are standing before
16 you today. So we ' d just like you to keep that in
mind in terms of your deliberations . I thank you
17 for the time .
MR. PASCA: Before we leave that, there ' s one
18 other item that Mark Perry mentioned in LWRP which
is, he recommended that if there is to be an
19 approval, a variance granted, that the dry well is
located closer to the bluff, be located at least
20 50 feet from the bluff and we don ' t have a
problem.
21 MR. HERRMANN : And Tony, that hay bale line
too --
22 MR. PASCA: Right, we received a comment from
the County Coastal Erosion person .
23 CHAIRMAN DINIZIO: What did he say?
MR. PASCA: A comment on the original hay
24 bale line that it would affect runoff. So again,
we ' ll redesign the hay bale line to protect for
25 that process .
BOARD MEMBER GOEHRINGER: I reserve the right
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 to just come back and discuss anything else . This
happens to be my application . I have the duteous
3 task of writing the decision and that was just an
opinion of mine . That was not an opinion of the
4 board' s . I will say this to you and all due
respects to EN-Consultants, we have not had a
5 significant hurricane out here . The condition of
the bluff in Mattituck after significant
6 hurricane, primarily in the latter 170s, early
180s, had basically taken those walls right out . I
7 am never suggesting that that would happen . I can
tell you, however, that just as if they were
8 toothpicks and cliff score was beyond belief . I
do want to apologize to these very, very nice
9 applicants because I understand they are
absolutely lovely people and they love being out
10 here and we love having them here, but that ' s just
my opinion .
11 CHAIRMAN DINIZIO: Leslie?
BOARD MEMBER WEISMAN : This is a question
12 that will build upon the presentation thus far
relative to environmental impact . So I ' d like to
13 ask Stuart to explain to the board the fact that
this is not typical wood frame construction, it ' s
14 steel frame construction. So the impact of heavy
equipment in terms of land disturbance is
15 different . Could you please address that in terms
of heavy equipment line on that plan or exactly
16 how construction will proceed relative to its
affect on the bluff?
17 MR. NAROFSKY: The simple stages are obvious .
The first thing that ' s going to take place within
18 demolition is removal of parts of the existing
house is going to take place . There ' s an existing
19 area through the driveway area, it ' s very easy
access to the site through this corridor here for
20 whatever the house is just a cape so it ' s going to
be fairly light equipment to remove the roof of
21 the cape and cut away the wood frame section that
we ' d like to slice off in order to open the view
22 from the pool area . The next stage is going to be
concrete foundation . This house is proposed to be
23 on a slab, a fairly standard subgrade footings for
frost and nothing further . So we ' re not digging
24 down . We ' re not digging deep . The current house
has a partial basement, partial crawl space . We
25 are just going slab on grade, fairly standard
footings, minimal disruption as far as digging
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 like you would in a basement where you need a
wider, clear area . It ' s very easily excavated in
3 this area . The next phase is the steel frame . You
can look at this as a good/bad. The bad that
4 clients and most of the homes that we build are
steel frames these days . We do a lot of
5 waterfront homes and we find that to mitigate in
terms of hurricanes and wind and to meet the code,
6 I found that wood structures were becoming high
risk. In all the clipping and the steel and modern
7 homes typically have more open space than a
traditional home . We ultimately migrated over the
8 years to doing all steel construction. The bad is
the clients see their foundation sit there for
9 months and say what ' s happening with our project .
The good is that as opposed to a wood frame and
10 lots of mess on the property, it ' s all being done
in the factory somewhere . Ultimately, a house of
11 this size can be constructed within five days . A
small truck will come in here, park itself right
12 around here and literally swing from a flatbed
most of the steel into place and have this thing
13 erected within five days . It ' ll be four building
cables for stability during the rest of the
14 construction. And that ' s it . That equipment after
that it ' s hand laborers working with metal studs
15 and roof materials .
BOARD MEMBER WEISMAN : Could you also address
16 the proposal for pinning new foundation in the
existing, use the diagram to explain what is
17 remaining and what you ' re doing with the rest of
the foundation. Specifically, on sheet A3 of the
18 foundation plan, there ' s a call out saying
contractor to inspect conditions of the
19 foundation. This is troublesome . We ' re just had a
couple of very similar teardowns .
20 MR. NAROFSKY: I will tell you, because of
the nature of the structure, we have a structural
21 engineer on the job . His name is Mark Hodge, Hodge
Associates, a Manhattan firm. A very good
22 structural engineering firm in the sense that they
do a lot of residential work . Often structural
23 engineers do commercial work and you start to get
into residential design and they are not as
24 sensitive as they could be to size and other
considerations . One of the unique qualities -- so
25 relative to your concern about the note on the
architectural, there is and was filed a full set
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 of structural plans signed by a structural
engineer which has the exact details and
3 procedures as to what to do . But in a nutshell, it
is our hope to retain the existing concrete rock
4 foundation to do whatever remedial work is needed
with waterproofing and stabilization and put one
5 concrete block wall back along this diagonal where
in place of the part that we sliced off . The
6 section that ' s open here is deck construction .
There is no heavy foundation work being built up
7 against the old footprint of the house . It ' s just
light deck style tiers within this case a wood
8 deck, a very, very good wood to use on the water
in this case . It lasts long . It doesn ' t splinter .
9 Then you ' ve got the slab of the wing here which is
pretty far from the old house and again just 3 1/2
10 foot deep footings, slab on grade, very, very
sensitive . Hopefully, that answered your
11 question.
CHAIRMAN DINIZIO: Okay, Leslie? Michael?
12 BOARD MEMBER SIMON : Yes . I wonder if you
can put the other board on, the one that we had
13 before you put that one on.
MR. NAROFSKY : The diagram?
14 BOARD MEMBER SIMON : The diagrams for the
variance, yes . I certainly have taken note of the
15 care and thought going into this thing and the
attempts o do as much as one can conceivably do
16 within the constraints of the existing code and
environmental constraints . I 'm quite impressed
17 with the presentations as a matter of fact . But
just to follow up a little bit on Gerry ' s initial
18 question that however good a job you can do in
mitigating the problem of this property being so
19 close to edge of the bluff, nonconforming and
particularly in comparison, as I understand it,
20 with the other houses along the bluff, it is by
history, by it ' s own history, a lot closer and
21 this is one of these things that sort of jumps out
at people and then the concern is will that make
22 any difference . You ' re doing your best to argue
that it wont because of the type of construction
23 and so on . The problem of there being a house
with one angle too close to a bluff or too close
24 to a bulkhead is not an unfamiliar one in this
town and there are cases where people are
25 preserving one little corner of a house and
building a huge house landward of this . Now, this
55
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 is technically legal . It ' s like the question of
how can you save a footprint so you can rebuild in
3 the same nonconforming spot? And this pushes the
envelope as far as is legally possible to do so . I
4 think it is legally possible . I also think that
this is something, and I think Krumsky had the
5 right idea, that probably should change . I also
believe it is not within the jurisdiction of this
6 Board to try to legislate for a change which I
think would be helpful for the Town . This is kind
7 of more for the Board and the public perhaps then
for the applicant . But I -- if I am not happy
8 about how close that is there, I cannot think of
-- I haven ' t yet been presented with any
9 substantive argument that it still can ' t be . Not
everything happens the way we would like it to
10 happen. And if people are acting within their
rights in exploiting the existing rules and
11 exceptions and loopholes, if you will, well,
there ' s nothing much we can do about it unless
12 we ' re going to change the code . That wasn ' t really
a question, just a comment .
13 MR. NAROFSKY : But I would like to make a
comment too . I 'm foreign here so I 'm not going to
14 get into a debate . There are other conditions .
First out of all, a new construction is in line
15 appropriately with anything that we found to the
adjacent -- we ' re either in line or back but I
16 would like to answer that . There are more factors
then just that code . We honestly did not come in
17 and say there ' s a loophole and let ' s act upon it .
They had an existing swimming pool . They could not
18 reconstruct that swimming pool in it ' s current
place . It is also nonconforming . It ' s functional,
19 it ' s there, they spent money on it . So part of it
is, right in the middle of the property is a
20 swimming pool . The other aspect of it is , the
years they ' ve lived on the property and
21 understanding their views and their exposures ,
they made it very clear as we walked their
22 property what made sense to them as far as
position . And as we walked their property,
23 looking at the adjacent homes, what made sense in
positioning. So the shape and orientation and
24 location wasn ' t like let ' s grab the code and just
work it . Obviously, I 'm much further back then
25 just the point of the existing house . The existing
house is very close to the bluff and everything
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 originally we ' re trying to work further away from
it and still retain the structure of the pool and
3 be as close to it . You get the aesthetic ideas of
opening up, you see the hole at the bottom so that
4 one can view the water from the pool . But that ' s
not what drove the configuration . You can see the
5 pool drove the configuration here and in answer to
to question of moving back, the fact is , and not
6 that I 'm offering anything, but the nature of this
composition, this kind of design, if I had to
7 tweak it, if I 'm thirty-five feet back and you
felt more comfortable with thirty-eight, could I
8 tweak it and make that adjustment? Absolutely.
It ' s not the symmetrical colonial that if you push
9 on one side, the other side flips and we have all
these issues . It is a very highly articulated
10 composition and I think that there probably is a
balance, a comfort level without the disturbing
11 the pool giving them the vies and the sight lines
they want that we could find a balance .
12 CHAIRMAN DINIZIO : Ruth?
BOARD MEMBER OLIVA: Kieran?
.13 ATTORNEY MEMBER CORCORAN : I don ' t have a
vote but I would just say I don ' t necessarily
14 agree that this case falls within a perceived
loophole in the law . I think what we ' re referring
15 to is the exemption from the hundred foot rule if
you build landward of an existing structure .
16 Despite what the Building Department might have
told you originally and all apologies from the
17 Town for that because clearly, they reversed their
position and that ' s why you ' re here . When you got
18 a Notice of Disapproval, the Building Department
found that you didn ' t fall within that exemption
19 or loophole and so you ' re here for a variance .
Now, this Board can choose to do what it wishes in
20 granting a variance .
MR. PASCA: It ' s either or . Our application
21 -- the first side of our application is for the
reversal of the Building Department ' s
22 interpretation. When we get to the variance, this
Board disagrees with our interpretation and agrees
23 with the Building Inspector ' s interpretation. So
it ' s an either or.
24 ATTORNEY MEMBER CORCORAN : I understand that .
The last part of what I said was intended to get
25 to . This Board, even if it determines that it
does not qualify for an exemption and is not
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 building landward of an existing home, it can
still grant a variance and it has discretion to do
3 that I think that ' s what the architect was just
getting at in terms of there may be room to
4 balance any concerns the Board has and that ' s what
the Board needs to do . I just wanted to make it
5 clear that it ' s by no means clear to me that
there ' s a loophole that this project can slide
6 safely through .
MR. PASCA: The only thing I ' d add too is
7 that we never perceived it as a loophole. We
perceived it as the code and I think that the way
8 they approached it by coming to the Town first
kind of shows that they never really saw it as a
9 loophole . They wanted to make sure they were
looking at it the right way . There is some
10 connotation when a couple of people use the word
loophole like they were trying to slide through
11 something and it really never was the case .
BOARD MEMBER SIMON : I would like to withdraw
12 the word loophole . We used a lot of words and
that was not my favorite one .
13 ATTORNEY MEMBER CORCORAN : And I don ' t want
you to take me the wrong way. I don ' t mean to
14 connote that you ' re trying to get away with
anything . I was just trying to make sure that the
15 Board knows what it ' s doing .
MR. PASCA: To add one thing also, if we can
16 get to the aspect of the variance side of it . If
the Board has certain concerns , the Board does
17 have power to impose reasonable conditions . So I
think what Stuart said is there may be some room
18 to have some flexibility on the design because it
is a unique design and if there are concerns, we
19 would like to address them.
CHAIRMAN DINIZIO: Let Ruth finish up .
20 BOARD MEMBER OLIVA: I go along with the
original interpretation that the whole house would
21 have to be there . Not just a portion or piece of
the house that ' s just sticking out there . I think
22 your presentations were excellent . I like to
design of the house . I think it ' s unique . I ' d
23 love to see it when it ' s finished. But I do think
it has to be pulled back. Mr . Hermann, you did say
24 incorrectly that there was no disturbance of the
bluff in front of their house but the bluff to the
25 west is deteriorating and it does worry me because
I know those bluffs . I know the whole bluff
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1 ZONING BOARD OF APPEALS - JUNE 28, 2007
2 because I ' ve walked an awful lot of the shore
line . They ' re deteriorating and you ' ve got to be
3 very careful . Gerry ' s right . You get a hurricane,
goodbye . I can just tell you just an example of
4 where Brecock Hall (phonetic) is . The original
owner told me his bluff had not eroded in 30
5 years . We had one bad nor ' easter and a third of
the bluff was gone . So this is something that I 'm
6 thinking more of the welfare of your clients to
get that house back as far as they reasonably can .
7 Otherwise the design itself I think is interesting
and very good. I like the house .
8 CHAIRMAN DINIZIO: Okay. Leslie, you had
something you wanted to add?
9 BOARD MEMBER WEISMAN : Yes . This is a
follow-up question to our counsel ' s statement that
10 I probably need to address to Stuart, I think, or
perhaps counsel . When is a house no longer a
11 house? When you ' re talking about an existing
dwelling, additions and alterations to an existing
12 dwelling . You have a diagram that explains what
you ' re going to retain and what you ' re going to
13 remove how you ' re going to essentially add on to
it and I think Gerry sites specific conceptual
14 development of this . This house is not only
sensitive but beyond articulate both in terms of
15 materials and prevailing breezes . It ' s very
skillfully done .
16 CHAIRMAN DINIZIO: May I just add -- perhaps
if we read that part of the code? Is that allowed?
17 I think Kieran knows that part of the code .
BOARD MEMBER WEISMAN: We could but let me
18 just ask a question . I am going to go back to that
because it ' s a learning curve for everybody
19 because each application is specific to the site,
to the conditions and so on . And I think you ' ve
20 all made very compelling arguments including your
very lengthy legal brief on that particular part
21 of the code which I 'm sure we all read. I
certainly did. So let ' s ask the question from
22 start . Why not demo the whole thing if you ' re
retaining just a small corner and creating an
23 asymmetrical series of volumes that you can play
with and shift back and forth, why not just start
24 from scratch? Can you answer that for the Board?
MR. NAROFSKY: It ' s a compelling question. We
25 discussed it . Not having to deal with zoning or
any of the legal issues here . What was driving
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 leaving that portion? No question 50o that was
driving it was, as I understood it, coming in to
3 reading the code and interpreting it . The other
50o was , it appears to be intact . That area in our
4 new program with the guest room and studio for
Adrienne and a bathroom area, the shower area on
5 top of the wood frame floor didn ' t seem
inappropriate . The plumbing is there . The waste
6 lines are there . There ' s a brand new boiler in
that section to retain and utilize for the heating
7 in that particular area. And the way the design
worked out, the way the master bedroom area right
8 here sits back and over it, it didn ' t seem to be a
conflict to be honest with you . So to have left
9 that part of the footprint, it ' s minor mechanics .
I know in context with a job like this you would
10 clean it out and start from scratch but you know
what, the use that we ' ve determined that the best
11 use for that particular area just seemed to be
with keeping it, removing the gable roof and
12 building a wood deck on top, not an extremely
difficult thing . And the nature of the steel
13 construction means that I 'm dropping some tiers
down and I 'm literally floating over it . I 'm not
14 bearing on it , I 'm floating over it . So it was
kind of a 50/50 to be candid.
15 CHAIRMAN DINIZIO: I was just wondering if we
could have Kieran is going to read that part of
16 the law because I heard some conflicting
interpretations as far as building and existing
17 structure that needs to be clarified here because
we ' re talking apples and oranges, I believe .
18 Kieran?
ATTORNEY MEMBER CORCORAN : Sure . I 'm going
19 to paraphrase until we get to the specific part
we ' re talking about . Essentially, you have to be
20 setback 100 feet from the top of the bluff . That ' s
280-116A, plot adjacent to the Long Island Sound,
21 building and structures need to be 100 feet from
the top of the bluff. Page three, however, says
22 that "buildings or structures which are proposed
landward of existing principal dwellings shall be
23 exempt from the requirement set forth above in
subsections Al and 2 . "
24 CHAIRMAN DINIZIO : Okay.
BOARD MEMBER SIMON : The word is buildings ,
25 plural?
BOARD MEMBER WEISMAN : Or structures .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD MEMBER SIMON : Buildings or structures
and therefore, it ' s still -- whether it is part of
3 the same building?
CHAIRMAN DINIZIO: I think if you look at the
4 definition in our code of a building, I think you
come to a different point .
5 BOARD MEMBER WEISMAN : Maybe we can get Mike
to --
6 CHAIRMAN DINIZIO : No, no . Michael doesn ' t
need to be involved in this . He ' s here observing
7 and I think we should leave it at that .
BUILDING INSPECTOR VERITY: If anyone has a
8 question --
CHAIRMAN DINIZIO: Michael, I 'm not going to
9 ask you a question . I don ' t want to get into this
but if someone else would like to ask you a
10 question and you feel comfortable coming up, come
on up . Anybody would like to ask Michael a
11 question?
BOARD ASSISTANT KOWALSKI : Would you like the
12 definition of building read?
CHAIRMAN DINIZIO : Can you read the
13 definition of building for us, please?
ATTORNEY MEMBER CORCORAN : A building is a
14 structure wholly or partially enclosed within
exterior walls or within exterior and parting
15 walls and a roof affording shelter to persons and
or property.
16 CHAIRMAN DINIZIO: That ' s all we need to
know.
17 MR. PASCA: I 'm not sure there ' s any debate
as to what we ' re proposing is a building.
18 BOARD MEMBER SIMON : There ' s a question as to
whether it ' s more than one building.
19 CHAIRMAN DINIZIO: I 'm questioning whether
it ' s an addition to an existing building .
20 MR. PASCA: What I 'm arguing that what the
code says is buildings or structures, whether it ' s
21 one or two or more, that those are buildings and
structures which are proposed landward of existing
22 principal dwellings . Existing principal dwelling
is located at a certain point .
23 CHAIRMAN DINIZIO: Right, there, existing .
It ' s existing . It doesn ' t mean you can tear it
24 down and still call it existing .
MR. PASCA: The code doesn ' t say you have to
25 leave the existing one there . It says you --
CHAIRMAN DINIZIO: No, actually, that is what
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1 ZONING BOARD OF APPEALS - JUNE 28, 2007
2 drives the whole law, the fact that there is an
existing structure on there .
3 MR. PASCA: I agree .
CHAIRMAN DINIZIO : We don ' t need to get into
4 that . I think you have a really nice project here .
It ' s my turn to speak too, by the way. I would
5 like it if you could consider taking the existing
part of the house and pushing it underneath this
6 part that comes towards the pool as far as you
possibly can get it away from the bluff .
7 MR. NAROFSKY : Where are we talking?
CHAIRMAN DINIZIO: Take this , straighten it
8 out and push it back in to here . Can you do that?
Would you have any objection to that and
9 approximately how many feet would you gain from
the away from the bluff?
10 MR. NAROFSKY : We know from the site plan
that the extreme point here is 51 feet back and
11 this is approximately 31 feet .
MR. NAROFSKY : That ' s .
12 CHAIRMAN DINIZIO : But you ' re not going to
get it all the way to 51 feet back. Will it be45?
13 MR. NAROFSKY: What you' re proposing in stage
one is going back to your earlier question is now
14 we ' re taking the existing down . We ' re
reconstructing it in a different position.
15 CHAIRMAN DINIZIO : Let me ask you this . The
front windows that you have in that existing
16 building, are they there right now?
MR. NAROFSKY: No .
17 CHAIRMAN DINIZIO : So you ' going to take that
wall down?
18 MR. NAROFSKY : For the most . We ' re not
hiding that . We ' re taking the existing sliding
19 doors and windows down and putting new ones in.
The only issue about doing that and I have not
20 conferred with my clients but from a functional
point of view, yes, I can do that . I can ' t speak
21 to the dollars and cents at this time . The only
area I can see them as clients, knowing at this
22 point, I know them many years they ' re actually
very close friends of my family, so I know them a
23 long time, is that the roof terrace here that
we ' re building on top of the first floor is
24 obviously a beautiful first floor location . So
part of the concept was getting them this space .
25 I would propose to go a little bit further . I
would propose to try and shift some of it in and
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 as well shift the new part back so that I can at
least get a juxtaposition from the first to second
3 floor and so that they can still have a terrace .
What I hate to propose is that we square off the
4 structure and have a projection -- have a common
deck in which you have spaces below like they have
5 now . They have a deck coming off the back of the
house . One of the reasons -- even in new
6 structures that we do from scratch, I try to avoid
-- we do a lot of waterfront, is terraces that
7 don ' t have things under them. I really try to make
them and even though with much cost a specialized
8 roofing system. This is planned for Kemper roofing
system. A very expensive roofing system, 50 year
9 guarantee, not a warranty, guarantee, it works .
It doesn ' t leak. Doesn ' t cause problems . So we
10 make an investment in putting a roof over usable
interior areas without having any water issues . So
11 I would say that, as I offered before, if there is
a dimension that in this wing, that I can put this
12 wing back and rotate it back to maybe, you
mentioned the 38 foot point, rotate it back to
13 that 38 foot point . That could move the existing
footprint back another 8 feet as well . I don ' t
14 think the first floor aspect of the existing
footprint is, you know, that impacted . It ' s
15 currently there, it ' s adjacent -- but I can see
that that could be something that I can really --
16 CHAIRMAN DINIZIO: I 'm not telling you how to
design the house . I 'm just saying what Ruth said,
17 to get it back away from that bluff . That ' s a way
you can gain space .
18 MR. NAROFSKY : My proposal would be to take
this wing, rotate it back in such a way as to get
19 something along the lines of the dimension that
Gerry was speaking of and then possibly move the
20 existing deck back.
CHAIRMAN DINIZIO: So, if we granted a
21 variance, what would it be? What would the footage
be approximately? Forty feet, forty-five feet?
22 MR. PASCA: Could you, procedurally, leave
the hearing open for 10 or 14 days so we have a
23 chance to propose a condition that you can then
impose?
24 CHAIRMAN DINIZIO: We would like, if you
could, give us another drawing with the setback.
25 MR. PASCA: Rather than force you to say 10 ,
20 , 30 feet . It ' s better to work from something
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 that --
BOARD ASSISTANT KOWALSKI : Remain part of the
3 file .
MR. PASCA: Right . So you now what you ' re
4 approving .
BOARD MEMBER SIMON : I have a specific
5 question for you . If you had known that you were
going to come before this Board anyway, would you
6 have designed it exactly the way you did?
MR. NAROFSKY : No .
7 BOARD MEMBER SIMON : That ' s what I thought .
That point sticking out -- you would have applied
8 for a variance for house designed something like
what it looks as though we ' re recommending in the
9 first place .
MR. NAROFSKY : The truth is , I still would
10 have worked around the pool . But had I known I was
coming here anyway --
11 BOARD MEMBER SIMON : You wouldn ' t have
invested in keeping that little corner there?
12 MR. NAROFSKY : No .
BOARD MEMBER GOEHRINGER: One last question .
13 Based upon the 51 feet that you have and of course
we have an irregular bluff, based upon what the
14 chairman has requested and based upon the
construction that you ' re discussing, is there a
15 possibility that anything within that 50 foot
range could be breakaway. In other words, it could
16 be sustained by the second story of this building?
MR. NAROFSKY: Absolutely. There ' s no
17 question that that lower level could be
constructed with that .
18 BOARD MEMBER GOEHRINGER: That would be the
way to go .
19 CHAIRMAN DINIZIO: Erosion of the bluff is
not a concern right now but for future, we try --
20 MR. NAROFSKY: If we explore this structure,
obviously its still a steel structure that ' s
21 substantial relative to wind concerns . Even the
glass we ' ll be moving . So yes, I would certainly
22 think that once I rotate this or slide it back,
the lower level moves back.
23 BOARD MEMBER GOEHRINGER: It ' s very important
that we do that during construction so that we
24 understand the process that you are using.
MR. NAROFSKY: At that point, I would turn to
25 my structural engineer and as them to review that
aspect of it with the criteria to follow in that
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 case .
CHAIRMAN DINIZIO: Anyone else have anything
3 else to say? We ' re going to leave the hearing open
until our next hearing . You requested that .
4 MR. PASCA: I would prefer a partial --
CHAIRMAN DINIZIO: Let me see if there ' s
5 anybody here speaking against it . Let ' s here
whatever testimony there might be there and then
6 we ' ll make our decision. Is anybody here that
would like to speak for or against this
7 application? Ms . Moore?
MS . MOORE : Yes . We were faced, this night
8 seems to be the Ides of March opinions that are
here today months later . I went through a lot of
9 research at the Town in the computer with respect
to the local law, when it was adapted, the bluff,
10 the setback to the bluff law back in 1993 and then
the revision that was added later to allow for
11 this, I think, this precise situation and other
situations that you heard today, which is the
12 construction of additions or alterations to
existing homes that are in the nonconforming
13 setback of that 100 foot . And I ' d like to -- I ' ll
send over, unless I can make a copy with the Town
14 Clerk ' s permission, what I have . This had been
submitted to the Building Department in an effort
15 to avoid being here on another application we had,
and I ' ll read to you that -- in the legislative
16 process, when the Town Board added this extra
exemption with respect to setbacks to the bluff,
17 they send it, as you know, to the Planning Board,
for their review and recommendation. In the review
18 and recommendation that came back to the Town
Board, the Board said that, and I ' ll read to you,
19 it ' s not very long . It says , "the Board finds that
the proposed legislation will allow existing
20 waterfront homes located on Long Island Sound,
Fishers Island Sound and Block Island and situated
21 less than 100 feet from the top of the bluff or
bank or from ordinary high water marks to be
22 expanded without review by the Trustees or the
Zoning Board of Appeals . " So they brought that
23 issue to the forefront . "This proposal also will
permit the addition of buildings landward of the
24 principal buildings located closer than 100 feet
from the top of the bluff or bank or from the
25 ordinary high water mark. The Planning Board feels
that all such expansions or new constructions
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 should be the subject of review by either the
Board of Trustees or the Zoning Board of Appeals . "
3 That was the resolved -- it said otherwise, we
support this application. When the supervisor, it
4 was Supervisor Harris at the time, took that in as
a recommendation, they heard it, they took it in
5 and they said, yeah, we want to allow this
exemption for the preexisting, nonconforming
6 structures because ideally in the ' 90s when the
lots were being developed on the Sound that could
7 meet the 100 foot setback and you see all the
subdivisions that are approved around that time
8 have in place 100 foot setbacks from the top of
the bluff . At that point , they ' re creating laws
9 that can conform to the new requirement that
they ' ve imposed. They recognized later because
10 they put the law in the books and then everybody
has to come before this Board for variances one
11 after another . They said we didn ' t realize we
were going to create so many nonconforming
12 situations . Let ' s provide the exemption and that ' s
what they did. And I think you really have to
13 look back and I think that the code says we can,
all the three applications or two applications,
14 certainly Ragusa which you just heard and this
one, would have otherwise not needed this
15 variance . Now you know that the Trustees through
their new legislation review these because it ' s
16 100 feet from the bluff. So it ' s taken a long time
-- it was adopted in ' 93 and here we are in 2007 .
17 They now have in place the review for the
environmental factors that were the concern at the
18 time . But they also recognize that there are a lot
of preexisting nonconforming lots that the lot
19 itself isn ' t even 100 feet from the top of the
bluff from the front to back. So we have to
20 provide, or I think, that it is more so today than
any other time to keep that exemption and to
21 recognize that exemption . So when you ' re
deliberating because I know that you ' re debating
22 it among yourselves , I would ask you to go back to
the legislative history. If you don ' t agree, the
23 Town Board can correct it or modify the
legislation . But I think that to modify it, they
24 will hear from a lot of waterfront property owners
that have existing homes that need, that have been
25 build in the ' 70s or up through the time of 193
prior to ' 93 when the code went into effect . Which
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 it ' s time to renovate and it ' s time to make
additions and so on . It may not be so easy to get
3 the legislative change . Rather than have Zoning
Board activism, go back to the Town Board. So,
4 that ' s my pitch . Keep it in the legislative
level . You have already a historic interpretation
5 and an historic adoption of this law that -- here
we are, the Building Department with your guidance
6 has now made all of us come in for this setback.
I will provide that to you if you want later . You
7 can put it in your file and review it . But all the
-- it ' s in the computer and it was all taken out .
8 So I wish them luck. I think that they ' ve spent an
awful lot of money to get to this point and in all
9 fairness to them, in a sense, I don ' t want to say
the Town screwed up, but the Town did screw up .
10 When people come here and I think Mike, he ' s here .
He thought that Don Philer and I had tried to take
11 advantage . That ' s the sense I got when we were
here on Ragusa and we said no . We came and met
12 just as they did in March and that was the
direction we got . And it ' s the same direction
13 that I ' ve always gotten on applications . So even a
local lawyer reading the same regulation, we
14 understood and we always, as a safety net , come to
the Building Department and say, I read it this
15 way, do you agree? And when they say okay, then we
make our clients spend an awful lot of money to
16 get to this point . So it ' s very, very difficult I
think at this point, it ' s wonderful that they are
17 willing to do some modifications to make you
happy, but in all fairness to them, that ' s a lot
18 of endeavor to get to this point . Thank you .
CHAIRMAN DINIZIO: Thank you . Anybody else?
19 BUILDING INSPECTOR VERITY: Again, Mike
Verity, Chief Building Inspector, Southold Town .
20 Just a comment . I don ' t want to back and forth
with Pat and everybody else and I don ' t oppose the
21 project or any projects here because if I oppose
construction, it ' s not good job security so I have
22 to push construction along. Jim, do you have a
picture of the house?
23 CHAIRMAN DINIZIO: The old house?
BUILDING INSPECTOR VERITY: Yes, of the old
24 house? Can I look at that quickly? This is not a
shot at anybody. We ' re describing this house as a
25 cape . It ' s not a cape, it ' s a ranch . We had early
application, it came into us a two-story building .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 It ' s not a two-story building . You can understand
where I 'm going with that . That ' s how things are
3 presented to us and, again, I 'm not opposing any
project . I even had a conversation with Pat in
4 reference to a conversation that she had with a
plans examiner and she said, "well, I came in
5 anticipating a disapproval and when the person
said something otherwise, I quickly put that to
6 the side and said let ' s hear what you have to say"
and now it ' s no longer a disapproval as she
7 anticipated and I don ' t want to use the loophole,
but it appears that they found a way that they can
8 go around and not get to the ZBA. If I would have
saw the model, and I have to apologize to the
9 owners of the property in Mattituck, if I would
have saw the model in 2006, they would have been
10 in front of you in 2006 . I did not see the model .
I did not see any of the drawings . I didn ' t see
11 any of that . When I did see it, I had to object
to it and I had to send it to the Zoning Board of
12 Appeals as per the code . It ' s an easy
interpretation and it ' s an interpretation that
13 hasn ' t changed. It ' s been the same since day one .
I think we ' re getting back to holding a 2x4 or two
14 2x4 ' s and now building from that point back and
that was an ugly time back in the ' 80s because I
15 was building in the ' 80s and I remember what
happened at that time . We got away from that ' s
16 which we should have truly moved away from that
because that ' s not the intent of the code . I am
17 not opposing the project . It ' s an excellent
project . They got great design people on board and
18 I think they should be able to move forward on
that again with the Board ' s guidance . Thank you.
19 CHAIRMAN DINIZIO: Thank you . Anybody else
have anything to say about this application? Sir,
20 what would be your pleasure?
MR. PASCA: Our pleasure would be an approval
21 today. That would be our pleasure .
ATTORNEY MEMBER CORCORAN: Failing that?
22 MR. PASCA: We still, our application is
still for an interpretation principally but
23 assuming we get to question two which is the
variance question, then the architect -- I want
24 Stu to just explain so that when we leave here we
know that we ' re on the same page as to what he can
25 try to do with the plans . So can you say what you
think that you could accomplish in the next couple
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 of weeks?
MR. NAROFSKY: Just so -- it ' s hard enough
3 having two clients , let alone nine . If we can
agree officially here as to what your concerns are
4 and how I can mitigate those concerns . As I
understand it, one, try to shift the westerly
5 portion of our addition back from the bluff line,
you mentioned 38 feet . I know I 'm approximately
6 30 now. I don ' t have a problem moving back that 8 .
On the model, we ' re talking about this corner . So
7 whatever I rotate or angle or whatever I do to get
it to that point, again, all floating anyway, and
8 then take along with it the similar relationship
that it has now to the first floor roof terrace
9 which will move that back approximately 8 feet and
then proposed breakaway construction for that
10 bottom section.
BOARD MEMBER GOEHRINGER: Yes .
11 MR. NAROFSKY : I have those parameters . I can
submit to the Board within two weeks a revised
12 site plan and floor plan . I will submit a letter
from my structural engineer which will discuss
13 breakaway construction and the technique we would
be utilizing and --
14 BOARD MEMBER WEISMAN : And foundation .
MR. NAROFSKY : Whatever the technique for
15 doing that type of whole type construction that
would be most likely the early stage and in
16 written form and then just ask the Board to say
given the -- my commitment to following this
17 guideline then be left up to the Building
Department just to make sure that final
18 construction adhere to that .
CHAIRMAN DINIZIO: So if you could commit to
19 say 38 feet right now and you can give us the
drawings and all the stuff to accompany that and
20 we meet on the 12th, you give us that information
before hand --
21 BOARD MEMBER SIMON : I have a question
though . The number 38 was first introduced by
22 Gerry and I don ' t know whether we have a consensus
that that would be the number .
23 CHAIRMAN DINIZIO: No, but I think it ' s as
far as he ' s willing to go .
24 MR. NAROFSKY : You ' re 100% right . Gerry
mentioned 38 . I don ' t know why he mentioned that
25 dimension .
BOARD MEMBER WEISMAN : He made it up .
I
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD MEMBER GOEHRINGER: No, I didn ' t .
CHAIRMAN DINIZIO : There ' s a reason for it .
3 BOARD MEMBER GOEHRINGER: I figured we needed
to go back a minimum of 20 feet to make it a total
4 of 38 . I ' d rather have it straight on at 50 but if
you can create the breakaway which is what you
5 need at the top of that bluff assuming that you
end up with a slide on that bluff based upon a
6 tremendous travesty that might occur in the
future, then I would be happy with limiting it to
7 that 38 feet and that ' s it . We ' re talking about
that situation .
8 CHAIRMAN DINIZIO: I 'm not saying that 38
feet is going to fly or not . I 'm giving you fair
9 warning that I think it definitely has to be
straightened out in some way . If 38 feet is the
10 best you can do, I 'm willing to --
BOARD MEMBER SIMON : What you ' re saying is at
11 least 38 feet .
CHAIRMAN DINIZIO: It ' s up to the Board.
12 What I ' m trying to do is get to the point where we
can make a decision on the 12th . One way or the
13 other. I don ' t care which way it is .
BOARD MEMBER WEISMAN : It ' s not fair to pick
14 a specific number and ask an architect to go to
the trouble of making substantial revisions and
15 then say that number is not okay. I think the
intent is there is a suggested number of feet
16 setback and that the intent is to get that as far
away from the bluff as you feel without
17 compromising, you can accomplish. There ' s a number
suggested. At least that gives you some
18 flexibility and gives this Board some
interpretation. Because if you did 38 feet and we
19 still had a problem with it, how fair is that?
You know what I 'm saying . The other thing is when
20 you submit, since you will now be altering some
the way in which the existing volume is used, we
21 will need to see what additional demolition is
going to take place .
22 MR. NAROFSKY : That will be clear in the site
plan .
23 CHAIRMAN DINIZIO: I think we ' re going to
have to keep this open trying to .
24 MR. PASCA: Yeah, you ' re kind of forcing --
CHAIRMAN DINIZIO: I 'm just trying to
25 accommodate you, that ' s all .
MR. PASCA: I recognize that, I appreciate
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 it .
CHAIRMAN DINIZIO: It ' s going to be another
3 month. Linda would like to say something .
BOARD ASSISTANT KOWALSKI : I just want to say
4 procedurally, what we recommend you do is come in
maybe with plan A, B and C, we ' ve done that
5 before to other applicants . If you find that the
38 feet or the 40 feet isn ' t working for you, when
6 you want to come up with a little bit different
design, you can do a rough diagram on that . Also,
7 we need 7 sets of those the week before that
meeting . It would be around the 26th of July that
8 it would be due . The next meeting is August 2nd.
CHAIRMAN DINIZIO: That ' s our next regularly
9 scheduled meeting. We can put you on for that .
Okay. Anybody else have anything to make comments
10 on this particular application? Michael, you want
to say one more thing?
11 BUILDING INSPECTOR VERITY : Just one more
thing about Leslie ' s comments . She said
12 documentation on the demo work. Earlier, they
mentioned the architect mentioned about the
13 waterproofing the existing foundation. It would
probably be good to get an idea of what they are
14 going to do with that because that ' s going to be
some sort of excavation. Personally, I would
15 recommend hand excavation in that small portion .
But it ' s good to know because that doesn ' t want to
16 come back again and we have to now as we were
discussing earlier in an earlier case . We don ' t
17 want that to surface and have it be a problem. So
I think everything should be brought to the
18 surface right now so it ' s not a future discussion
in this type of meeting.
19 CHAIRMAN DINIZIO: So if we grant, we move
the existing setback back --
20 BUILDING INSPECTOR VERITY: Then it ' s not an
issue . If the existing was to stay and they were
21 going to excavate, I heard and it seemed to go not
over everybody ' s head. I 'm not saying that in a
22 rude manner but it seemed to pass by but it is a
very important issue in reference to stabilization
23 of the bluff and disturbance around the bluff .
MR. NAROFSKY : Can I just answer to that
24 technically? Behind the current home, there is a
dock on many, many piers and the land for quite a
25 bit of distance under that deck is quite disturbed
right now. Once we remove that deck, the area that
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 we would be waterproofing would only improve the
space the way it can -- I appreciate the technical
3 idea but I think if you look under that deck now
-- we ' re doing a good thing by removing that
4 existing deck behind the house .
CHAIRMAN DINIZIO: Anybody else would like to
5 make a comment on this if not, I ' d like to hear a
motion that we leave this open until our regularly
6 scheduled August meeting .
(See minutes for resolution . )
7 **********************************
Hearing #6025 - Smith
8 CHAIRMAN DINIZIO: Our next hearing is for
Roger P . Smith and Constance A. Smith . It ' s a
9 carryover from our last hearing . It ' s Gerry ' s .
Gerry, I guess you don ' t have to read anything .
10 BOARD MEMBER GOEHRINGER: That ' s good.
MR. SMITH : Thank you very much . We ' re a
11 holdover from your May 31st hearing in which there
was a lot of discussion on the garage and barn
12 that we presented. First, I just want to make sure
that you get our certified mailing that we did.
13 We redesigned the garage and barn based upon the
hearing of the 31st and really some input from the
14 Board at that time and presented those plans again
to, I think, in your department for about a week
15 and a half at least or two . We also resent those
back to all of the surrounding neighbors as you
16 asked us to . The design basically took into
account some of the things that you asked us for .
17 We removed the dormer completely from the
application. We took the garage or barn and took
18 it from and east/west orientation and turned it to
a north/south orientation. I call that in line in
19 the letter that I sent you . The exterior still
keeps in the characterization of what we were
20 designing at that the time and we ' re comfortable
with it . We hope you are too . We, again, felt
21 that it really had it ' s greatest affect on our
adjacent neighbor to the west who are Ira and
22 Kay-Kay Haskell . They provided a letter to us
which I ' ll give you in a second, but for the
23 record, it states that it ' s to the Zoning Board of
Appeals and To Whom it May Concern, reference to
24 our application . And Ira writes, "my wife and I
have reviewed the revised plans for the above
25 referenced proposed work at Roger and Connie ' s
property and have no objection to the proposed
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 work. These plans dated June 20, 2007 indicate a
new garage five feet east of our common property
3 line with a ridge height of approximately 22 ' 7" .
We have no objections to the patio or pergola
4 either . If there are any questions, please call
their number . " Again, this is a letter from them
5 that they are not in opposition to what we are
proposing . I guess just based upon what we have
6 presented, we ' re holding our application five feet
from the westerly property line and if you have
7 any questions, we ' d be happy to answer them.
BOARD MEMBER GOEHRINGER: Mr . Smith, when I
8 went over there and met with you and your wife,
you mentioned that one of the main concerns
9 Mr . and Mrs . Haskell had was the continuation of
their hedge row there?
10 MR. SMITH : Yes .
BOARD MEMBER GOEHRINGER: And I discussed
11 with you at the last meeting the ability to
capture as much of the rain water off of that roof
12 as possible . You being in the business that
you ' re in, do you think you ' re able to do that
13 through proper leaders and gutters?
MR. SMITH: Sure . We ' re going to gutter that
14 side of the house and be able to attach that to a
pool whether to the north or south of the garage .
15 Very simple .
BOARD MEMBER GOEHRINGER: I also notice this
16 plan takes it a little farther away from that
beautiful tree that you have there .
17 MR. SMITH : Yes , it does and, for the record,
I probably should have mentioned that because I
18 did put it in my application to you . This design
did change it a little bit . We ' re not as
19 rectangular . We ' re a T shape and that T kind of
pulls away from the Walnut and it really does help
20 preserve it .
BOARD MEMBER GOEHRINGER: And based upon that
21 discussion that we had at that last meeting, also
you are still, I realize you ' re, and I use the
22 word fixated and it ' s not a proper word. You ' re
fixed at five feet but you are still going to
23 allow the Board if we don ' t get those necessary
votes to grant alternate relief if for some reason
24 we can ' t hold it at five feet? I realize that
that ' s a statement that you want to think about,
25 but I 'm not laughing at the statement or smiling
at it in any way. It ' s something that is important
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 for you.
MR. SMITH: I understand. I probably am we
3 have been somewhat fixated on the five feet .
There ' s really two reasons . One, the existing
4 structure is one foot to four feet off the
existing property line and we ' ve gone through an
5 exhaustive process to try to make the house really
special and historical in its own context and I
6 really think that putting the barn and garage in
the right position in the same general position
7 speaks to that history . The more it shifts east,
the more it bolloxes up, kind of like that fixated
8 word, I don ' t know how to spell it but I know what
it means, the middle of the property. It kind of
9 hugs in the center and really doesn ' t make the
property as usable . So, yes, we are fixated on
10 that . If my arm is twisted or I need to consider
something different, I don ' t think that we would
11 really want to be greater than probably six or
seven feet because we ' ve gone through taping and
12 surveying and checking to see where that is to get
a sense of where it sits and the more she shifts
13 east , the more it affects the grade, moves from
its present position and doesn ' t have the
14 characterization of the original property.
BOARD MEMBER GOEHRINGER: So you ' re talking
15 in the seven range?
MR. SMITH : Could I check that with my
16 partners? We ' re okay with that if that had to be .
BOARD ASSISTANT KO.WALSKI : If the Board
17 didn ' t agree on those numbers either and the Board
denied, then you could always reapply later with
18 another application . So, if you ' re limited the
Board to the five to seven feet, that would be
19 your only other option.
MR. SMITH: I think that ' s a very fair
20 presentation on our part to where we ' re trying to
put it . I think we ' ve come with quite an
21 application to you .
BOARD MEMBER GOEHRINGER: Based upon the fact
22 that you capture most of that water coming off
that roof so you don ' t flood your neighbors . It ' s
23 a pretty substantial roof .
MR. SMITH: We absolutely will . It ' s, I
24 think, the way we ' ve looked at this is the way it
should be looked at in a historical context and I
25 know that this Board has looked at other projects
of similar size and shape and granted things of
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 similar size and shape at five feet .
BOARD MEMBER GOEHRINGER: We just want you to
3 be aware that those are split decisions or similar
sizes .
4 MR. SMITH : We understand that . One very
comparable to it really kind of spoke to it .
5 CHAIRMAN DINIZIO : Gerry, you ' re done?
BOARD MEMBER GOEHRINGER: I 'm done .
6 CHAIRMAN DINIZIO: Leslie?
BOARD MEMBER WEISMAN : It would appear you ' re
7 reducing the height, obviously that one large
portion is now sort of a -- I think you were
8 originally 24 feet . You ' re now 22 ' 7 " . Code says
22 feet so you ' re 7 inches -- how high is that
9 copula, do you know?
MR. SMITH: No . I didn ' t put an exact
10 measurement on that . I don ' t believe those are
regulated .
11 BOARD MEMBER WEISMAN : No . I 'm just curious .
Is there any increase or decrease in the square
12 footage as originally proposed?
MR. SMITH : No . It ' s the same square
13 footage .
BOARD MEMBER WEISMAN : That ' s all .
14 CHAIRMAN DINIZIO: Mr . Simon?
BOARD MEMBER SIMON : No questions .
15 CHAIRMAN DINIZIO: Ruth?
BOARD MEMBER OLIVA: Well, I know it ' s just
16 five foot, I would prefer to be ten foot, frankly.
You have so much room there .
17 MR. SMITH : No, we don ' t . And I think that ' s
the misnomer that you ' re seeing a wide piece of
18 property. I 'm going to take you back historically
to this .
19 BOARD MEMBER OLIVA: And I know the tree is
there .
20 MR. SMITH : The tree is there . Also, a piece
of property was cut out from the front of this by
21 the Zoning Board which narrows the entire throw of
the property and really it only bellows out when
22 we get to that back portion . I think this is truly
what you ' re trying to accomplish when you put
23 things back in the historical context . To just
decide that it needs to move, it doesn ' t change
24 the value to the westerly property line and the
person most affected isn ' t affected. They find it
25 to be more than acceptable to them as the
permanent neighbor . Ten, again, starts to shift
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 into the tree and changes the alignment of the
property of the house and starts to move that
3 structure to the center of the property. I don ' t
think that was the intent of the regulation as you
4 saw it originally.
BOARD MEMBER WEISMAN : Well, it ' s a very long
5 elevation; 40 feet, 39 . something . So, it ' s nice
that you ' re neighbors are willing to accept point
6 foot wall along their property line . You did
obviously to reorient the whole --
7 MR. SMITH: We were 24 feet before.
BOARD MEMBER WEISMAN: I understand. That ' s a
8 very, very long wall . It certainly has less visual
impact now that the short end is the front
9 elevation facing the street . So there ' s a
tradeoff. But it is -- I would go by consensus of
10 the Board. It ' s a very large structure . It ' s as
big as many people ' s houses .
11 MR. SMITH : I understand. It ' s interesting,
as I was looking at this , we ' re permitted a
12 structure that ' s --
BOARD MEMBER WEISMAN : A percentage of your
13 lot size .
MR. SMITH : Which I think would be 25 foot by
14 75 foot plopped someplace in the middle of the
property back at setbacks and 18 foot high and I
15 didn ' t need to have a variance to put that there .
I can ' t imagine that what we ' re presented isn ' t
16 more special and better than just trying to throw
a big rectangle with a flat roof in the middle of
17 the yard.
BOARD MEMBER GOEHRINGER: You did a very
18 tasteful job .
CHAIRMAN DINIZIO: Okay. Can I speak now?
19 Is everybody --
BOARD MEMBER GOEHRINGER: Do we have to give
20 you permission?
CHAIRMAN DINIZIO: Well, I gotta ask because
21 I bite my tongue on this application, quite
honestly. The original law was written that you
22 could have an accessory structure and it could be
five feet away from the property line on this
23 piece of property. However, it had to be 15 feet
high . Michael, is that right?
24 BUILDING INSPECTOR VERITY : Eighteen feet to
the midline .
25 CHAIRMAN DINIZIO: Eighteen feet, okay. Now
you ' re asking us, after we changed the law that
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 said that on this piece of property you have to
keep it twenty 20 feet from the property line, you
3 want us to put this building that was supposed to
be twenty feet, so we ' re talking about a 1000
4 variance of the current law . Not only but where
you could once have an eighteen foot high
5 structure, now you want a 22 . 7 foot high
structure . To my mind, that doesn ' t make any
6 sense . If we ' re going to have a law and people
come and our Town Board has voted on that law, I
7 think we need to enforce it a little bit more than
a 100o variance from that law three months after
8 we put it in . Now, I was honest with you the last
time and I 'm being honest with you right now. I
9 am not in any way going to consider five feet . I
think that 100o setback variance after all the
10 work that the Code Committee did and the Town
Board voted on and all the publicity that it got,
11 it flies in the face of good government . So if
you can ' t go fifteen feet or perhaps move it to
12 where the driveway comes to that little turnaround
behind your house, which then you wouldn ' t need a
13 variance, I ' m willing to work with you. I 'm only
one vote, okay. But I ' ve heard all the evidence .
14 I believe we ' re at the end of this and I can
pretty much say that I know how I 'm going to vote
15 on this application and for the reasons that I
think we ' re usurping a law that we have on the
16 books with this application.
BOARD MEMBER GOEHRINGER: Can I ask one
17 question before you speak of the Building
Inspector? Mike, was it not true that the eighteen
18 feet was not to the ridge prior to this? It was
to the medium, so therefore, it was twenty-two,
19 was it not?
BUILDING INSPECTOR VERITY: That ' s correct .
20 Actually, the old code would allow eighteen feet
depending on --
21 BOARD MEMBER GOEHRINGER: It was twenty-two .
So we ' re talking seven inches different in height
22 that these applicants are before us for . The main
issue here is the setback.
23 CHAIRMAN DINIZIO: That would be an adds-on
roof .
24 BOARD MEMBER GOEHRINGER: No .
BUILDING INSPECTOR VERITY: Do you have gable
25 type roof? Gable type roof depending on the pitch
of the roof could easily go above the twenty-two
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 feet .
BOARD MEMBER GOEHRINGER: I just wanted that
3 cleared up . We ' re using you today because you ' re
here .
4 BUILDING INSPECTOR VERITY : I 'm glad I 'm here
though .
5 CHAIRMAN DINIZIO : Quite honestly, Gerry, the
problem with that is they would be turned down.
6 They would be before us asking us for a variance .
BOARD MEMBER GOEHRINGER: No they wouldn ' t .
7 CHAIRMAN DINIZIO: Of course they would be .
BOARD MEMBER GOEHRINGER: No they would not .
8 They were allowed -- we granted twenty-two feet
for --
9 CHAIRMAN DINIZIO: Okay. Anyway, I 'm not --
honestly, I think it ' s an aberration that you
10 would even consider five feet away from the
property line --
11 BOARD MEMBER WEISMAN : The issue is primarily
the side yard setback. It ' s the setback. The other
12 things that are resolved adequately as far as I 'm
concerned. The dormers were eliminated.
13 CHAIRMAN DINIZIO: It slopes away from that
side, I agree .
14 BOARD MEMBER GOEHRINGER: Let Mrs . Smith
speak.
15 MRS . SMITH : If I could just speak to the
fact that when we did originally submit, we were
16 within setback of the five feet . So the setback
was where it is . So we were not trying to push it
17 to where it shouldn ' t be . We were within a
smaller percentage of where we should be . And
18 that -- we submitted -- and that evening, things
were changed. So we kind of fall into a no man ' s
19 land as far as the setback goes and my tree is
very important . And we don ' t have a lot of other
20 trees there and as it is to change the plan the
way we did, we ' re going back further . To move it
21 anymore, we take down the few remaining trees that
are there . We ' ve worked really hard to do this .
22 This plan to build is at greater cost to us than
the original one was and we ' re trying very hard to
23 stay within all of the code and guidelines that
you ' ve asked. For us, this is the best solution
24 that we come . To move it any further, again, moves
it so much further that for groceries back and
25 forth, you know God willing, I ' ll be in this house
when I 'm 80 and I really need to be able to -- it
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2 makes it accessible to us for its use as a garage
and/or a barn . If it were strictly a barn., it
3 could be moved further from the house and it
wouldn ' t be as important .
4 CHAIRMAN DINIZIO: That ' s talking to the fact
that your driveway comes in and it curls around
5 the back of your house . Why can ' t you put it at
the end of that piece that curls around?
6 MR. SMITH : Drops five feet from that side to
the easterly property line . And that
7 configuration of driveway is exactly the
configuration of driveway that ' s been on that
8 property probably 100 years because it never had
any pavement . It probably had shells . And it was
9 all born in the same directions . So we put it back
in the same place . That ' s a turnaround so you
10 don ' t back out onto Main Road. That ' s all that
is . To drop a driveway there means I 'm going to
11 stick it four feet or four and a half feet out of
the ground and fill it or I 'm going to push it all
12 the way to the east property line so I can get
down into it . We ' re not arguing this to be
13 difficult . I want you to understand that . We
think there ' s a couple of things that make this
14 work. One is, we heard you the last time we were
here and I respectfully understand. It is a garage
15 and it did get longer on the westerly property
line but that ' s not by my choice . That ' s really
16 by discussion of feedback. You entertained a month
or two months prior to us, one in which you, I
17 think, permitted it to be five feet off the
property line, twenty-five feet high but no dormer
18 on a subsequent piece of property that ' s west of
here in a different Township that was even brought
19 to my attention at this hearing, it is for someone
to look at that and say it ' s not an identical
20 situation, it discusses the cutting up of property
that took place previously. It discusses the
21 width of the property, the saving of trees . It
looks as though I have the exact same application .
22 All I did, is I wound up on the Main Road instead
of 48 . So I think we ' ve made a really good
23 application. To shift it ten, it ' s like -- you
know there ' s an old prunes joke . If you remember
24 the commercial, it used to be is three enough, is
six too many. It ' s really a discussion that we ' re
25 having of moving. If you look at the property,
we ' re trying to put it back to what was there . If
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2 that piece in the front was still part of it,
maybe that would make a different sensation to the
3 whole thing. I 'm appealing to you that the more
you move it east , you don ' t make it better to the
4 property nor to the neighbor nor to the actual way
the property settles itself out . It ' s going to
5 look completely different than the picture that
you have in front of you because you ' re just going
6 to stick out of the ground four or five feet at
that end.
7 BOARD MEMBER WEISMAN : It would also be
blocking your view from the house, the patio . You
8 don ' t want to put it there but I understand your
concern about walking from the garage . If you
9 push it back onto your property a few more feet so
it ' s past your tree a little bit farther, you can
10 affectively move that side yard over without
blocking your view .
11 MR. SMITH : We did. We actually did move it
back.
12 BOARD MEMBER WEISMAN : It ' s a matter of
tweaking. You ' re talking a couple of feet . You
13 walk a few more feet, you move the side yard over
a few more feet and you leave it where the grade
14 is still flat . You ' re not making huge
alterations . Just tweaking it .
15 MR. SMITH : That ' s why I kind of bent to
seven because I know what that property is going
16 to do when I push it over to the east . If I push
it the extra five feet .
17 BOARD MEMBER GOEHRINGER: I didn ' t realize
that until I came over to see you that Friday
18 night on how much of that drop off really exists .
So it ' s always good to see it at a different
19 glance in a different venue and the different
venue was the grass was a little lower and you
20 could really notice the slope down and so on and
so forth.
21 BOARD MEMBER WEISMAN : It ' s a substantial
grade change .
22 BOARD ASSISTANT KOWALSKI : There was one
other thing added to the plan I believe we talked
23 about in the office was the Building Department
said that you would be allowed to have a half bath
24 you would like to have a half bath?
MR. SMITH : If you ' re permitted to have it .
25 Obviously, I 'm not asking for relief from it .
BOARD ASSISTANT KOWALSKI : It ' s added to the
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1 ZONING BOARD OF APPEALS - JUNE 28, 2007
2 plan though, right?
MR. SMITH : I put it on the plan. If it ' s a
3 problem, it ' s entirely up to you on that one . If
it ' s not a variance .
4 CHAIRMAN DINIZIO : I would just like to
address what he said. Because it still speaks to
5 our law which is a substantial variance from the
new law and I understand that you came in in the
6 middle of it . I, personally, looking at your
application realizing that there ' s an existing
7 structure there certainly works towards your
benefit in that there ' s always something existing
8 there, a barn or a building . It ' s close enough to
that line . So I understand all of that but I
9 still don ' t quite understand the amount of
variance that we ' re granting you. There are other
10 ways for you to get around that setback. Make it
less . You could build a small villa .
11 MR. SMITH : Smaller? That doesn ' t change the
variance.
12 CHAIRMAN DINIZIO : Sure it does . You can make
it ten feet less and still not block your view and
13 be ten feet further away from the property line .
MR. SMITH : Okay. Last -- as you drive up
14 driveway to get in --
CHAIRMAN DINIZIO: No, this is not the last .
15 We need to have discussion so I want to know your
reasons . I 'm not solid against but what you ' ve
16 presented so far, quite honestly, doesn ' t tell me
that you ' re willing to compromise for the good of
17 the Town. A 100% variance you ' re asking us for .
You ' re not willing to mitigate that in any way
18 other than to take a dormer off, okay. So I 'm not
so concerned about the dormer. I 'm not even really
19 concerned about the height . But I am concerned
about from twenty to five . That is something that
20 I don ' t know in two months or three months from
now, I get the exact same thing, am I just now
21 going to make the decision based on basically what
it looks like to me, you want to be able to walk
22 to this place . But can you make the building
smaller so that setback is less?
23 BOARD ASSISTANT KOWALSKI : He means cut
fifteen feet off the side of the building.
24 CHAIRMAN DINIZIO : I 'm not saying fifteen
feet . I 'm saying can you make the building
25 smaller?
MR. SMITH : No . And there ' s a lot of reasons
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2 and let me just go through those again and
respectfully. The existing structure is one foot
3 and four foot off the property line . Yes, we ' re
requesting a variance but we ' re making an existing
4 situation better . And the day that we got
relief -- the day we got our notification, that
5 morning, we were prepared to move ahead and I
think it ' s extremely important . This is that
6 timing issue . That evening the regulations changed
and we changed our application . Now we ' ve changed
7 our application 1000 , in our opinion, maybe not to
that -- I ' ve changed the design . I ' ve said I ' d
8 like to work with you . I ' d like to do this and
that . When you drive up the driveway to get at the
9 garage doors that we ' ve drawn, the more you push
that east, that grade drops off . So what I 'm going
10 to wind up doing at greater expense and greater
discharacterization to the property is filling it
11 or retaining wall it to get into a two-car garage .
I don ' t think it ' s a lot to ask for an acre of
12 property to have a two-car garage when it had a
piece cut out of the front that prohibits the
13 actual utilization of the front . That ' s what is
part of the variance proceeding. What happened
14 historically to the property and I think you also
have to keep in mind, and I don ' t know who was the
15 descending or the affirming votes on your previous
application, but you looked at one of these and
16 you granted it, taller, wider and five feet away
from the property line and there isn ' t a building
17 there . There is not a structure there .
BOARD MEMBER WEISMAN : Two comments . One, I
18 regret that another application was brought into
this application . It is not appropriate for us to
19 discuss the comparison . If it were so, I would
argue, vehemently, that is not comparable..
20 However, having said that, it ' s important to
realize you ' re doing much more than a two-car
21 garage . You ' re proposing a structure with
additional rooms that are habitable spaces .
22 You ' ll be in there working, your workshop, various
other rooms, half bath . This structure is much
23 more than a two-car garage .
MR. SMITH: I never said it isn ' t .
24 BOARD MEMBER WEISMAN : You just said we ' re
building a two-car garage . For the record, I ' d
25 like to remind everyone that it is much more than
a two-car garage in terms of the scope of this
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2 project giving you additional usable space beyond
where you ' re going to put your car . Considerable .
3 MR. SMITH : I ' d like to address the half
bath . We were here at a presentation a month ago
4 and had no intention of putting plumbing in but
it ' s my understanding that it is not regulated.
5 We ' re entitled to have it . If that ' s a problem,
we don ' t have to have it . We said that once
6 before . So if you ' re thinking that all of a sudden
this structure, building, garage, barn, whatever
7 it is is looking and feeling different, we tried
to make it different to feel more comfortable for
8 you .
BOARD MEMBER WEISMAN : Sir, it ' s not the
9 bathroom. The whole proposal as originally
submitted is much more than a garage . That ' s all
10 I ' m saying. The changes you ' ve made here are in
response, a cooperative response, to some
11 suggestions about the scale of the project, the
dormers . Trying to make it more in compliance with
12 what our current law is by removing the dormers
and reducing the height somewhat . So I think
13 primarily the issue, if it ' s legal for you to
build a building of that size, if it ' s legal to
14 have those kinds of uses within it, then it is .
It ' s fundamentally to what extent can this
15 variance be granted for the side yard setback
basically relative to the side . And I would argue
16 that although you, in some ways, are improving the
setback in terms of -- the previous structure is
17 tiny and it ' s a total demo . So to suggest that
there is some sort of historic memory of what was
18 really a little, very little shed building, this
is a brand new, very large building . So yes , you
19 are changing, you ' re increasing the setback but
relative to a forty foot wall . So those are all
20 things I think we ' ll have to deliberate .
MR. SMITH: I don ' t think we should lose the
21 property characterization . Buildings have
characterization . So does property. And a lot of
22 the property here has characterization. That ' s
exactly what we ' re trying to play to . I 'm not
23 playing that the building is larger or smaller .
We ' re playing to placement . I think that ' s
24 extremely important . It ' s the historical placement
that ' s just as important to the property as the
25 building itself .
BOARD MEMBER SIMON : The property has
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2 historical character . That historical character
doesn ' t improve the building that you ' re
3 demolishing.
MR. SMITH : That would be your opinion .
4 BOARD MEMBER SIMON : That ' s part of the law .
If you totally demolish a property and you apply
5 for a building permit to build a new house, no one
is going to pay any attention to the fact that,
6 you know, there used to be a house here . Used to
be is not a legal consideration as far as this
7 Board is concerned . We ' d be overturned if we took
it seriously and so we challenge it .
8 MS . MOORE : Patricia Moore . The Smiths -- I
happened to be here last time and made a comment
9 or two and they said well would you mind sticking
around and helping us if we need help . And I said
10 well no problem, here I am and they sent me the
plans and the modifications . And Mr . Smith is very
11 eloquent on his own right and can express himself
very well and has explained to you the rationale
12 or his reasonings for the proposed structure that
he ' s asked for . He ' s addressed for the most part
13 that the benefits sought by the applicants cannot
be achieved by some method feasible for the
14 applicant to pursue other than this area variance .
I think that ' s he ' s explained to you that all the
15 plans, everything has been done and the law
changed that night . I think that is a very
16 important factor because had he known that it was
about to be filed, he would have just filed it a
17 week before and would not have been here .
BOARD ASSISTANT KOWALSKI : It was advertised
18 a couple of weeks before .
MS . MOORE : Timing is everything . I think
19 it ' s important to, and Jim speaks to this, I think
that the feeling that you ' re expressing is well
20 you have a code, it ' s just been adopted so we
should stick to it . But when the code was adopted
21 and I know there was a lot of discussion and a lot
of going back and forth over the years on these
22 accessory structures . The idea is generally, how
does it impact your neighbor? How does it change
23 the character of the neighborhood because you do
have a lot of garages out ,there that grow. They ' re
24 on steroids . They are large and they are on small
properties and they can be on quarter acre
25 properties and it is really offensive . It is not
a bad law but the Town Board when they adopt a
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 law, it says Zoning Board. There are
circumstances . Look at the property. Look at the
3 situation and that ' s what your role is . Is to
look at the circumstances and the property before
4 you . If all you ' re going to do is say to the
people, you know what, make it conform. Then
5 we ' re losing a very important part of your role
here . When you drive by Main Road, all you see of
6 this structure is quickly between the property
lines, it ' s on an angle, and all you see is
7 slightly, the garage . In fact, the garage, this
structure you ' re going to see less because it ' s
8 moved over even the five feet that is proposed. I
think they are willing to say seven feet because
9 the importance to them of its location and to keep
the character of the existing -- the building, the
10 renovation that they ' ve done and the look of the
property. Obviously, they can ' t put it twenty
11 feet because they would lose very important
shrubbery. The topography, I think it ' s been
12 discussed today, you have elevation problems on
the property and it just doesn ' t work. You are
13 also -- MTA, the Long Island Railroad is behind
here . This property is very narrow at the street
14 level but normal width, 150 feet or so, 142 feet
in width, and the placement of it is in character .
15 It looks agricultural . He ' s designed it to be a
barn and it looks like it ' s an historic original
16 structure with farm fields behind it . That ' s the
character of Main Road and I believe that ' s why
17 you probably approved the one on 48 because you
were looking at the character of the surrounding
18 area and saying, this doesn ' t look like a garage,
it looks like a barn and we want it to look
. 19 agricultural . If you ' re going to build something
like this, make it look agricultural . Ira Haskell
20 has supported this application . He ' s the only one
truly affected. They have large oversized barn
21 structures on their property. This will really be
in keeping in character with the structures that
22 are on their property and it looks very similar .
The whole character of this region of Main Road is
23 one barn after another, one garage converted barn
after another . Unfortunately, when we adopt
24 legislation, we use a simple approach . The box
approach . This is what we want you to conform to
25 because we cant look at every circumstance . If
this was, if you were building a barn for
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 agriculture, I think you ' re permitted to do that,
right? Here you have an applicant that is trying
3 to make a building look just like all the other
agricultural buildings on this region of Main
4 Road. I understand your point . I know you ' d like
to keep to the code, but again, the code was just
5 adopted . Every time we adopt code, there are
numerous variances that we didn ' t anticipate and
6 in all fairness to the Smiths, we ' re talking about
a change that occurred that really nobody knew if
7 it was going to be adopted or not . So you really
got caught up here and you should keep that in
8 mind when you ' re considering this application .
Ms . Weisman, I think that it ' s very important that
9 precedence is in a sense the other exactly, the
identical circumstance on 48 , as you ' re being
10 presented here, that persuaded you to grant the
variance . I don ' t think you can exclude that from
11 you thoughts because if it was okay up there given
the circumstances of that property and do they
12 match the circumstances of this property, is it
comparable?
13 BOARD MEMBER WEISMAN : No, they ' re not .
Moreover, precedence in the same neighborhood is
14 what we look at . When you characterize a
neighborhood, as one of the balancing tests , you
15 look at precedence and typology within an existing
context . These are not the same neighborhoods .
16 They are not the same hamlet . They are not the
same uses .
17 MS . MOORE : I would say to you that this area
is even more compelling because there are barns --
18 BOARD MEMBER WEISMAN : We will examine the
neighborhood, absolutely.
19 MS . MOORE : Just about every property that is
along this road has a barn structure .
20 BOARD MEMBER WEISMAN : Absolutely, and I did
not mean to suggest, unlike others on this Board
21 who indicate at public hearing what their intent
might be, I prefer to deliberate . I prefer to
22 listen to everyone with an open mind and go back
and reread to file . Sometimes go back and see the
23 site again and listen to what my colleagues have
to say and have conversation, dialogue . So I am
24 not, certainly no way negatively or positively. I
asked questions and stated some opinions . I 'm
25 going to reflect very carefully on what the
applicants have done . It ' s very architecturally,
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 very nice design .
MS . MOORE : It might be rather than .
3 BOARD MEMBER WEISMAN : The law requires us to
examine every application on it own merits and you
4 know that .
MS . MOORE : Thank you . That ' s good.
5 BOARD MEMBER WEISMAN : Not to compare it to
other cases but to examine each case on its own
6 merits and that ' s exactly what I intend to do
here .
7 BOARD MEMBER GOEHRINGER: The only thing that
these two parcels that were mentioned have in
8 common is that they are described property. They
are not subdivided property.
9 MS . MOORE : Also the degree of the variance .
The substantial nature of the variance . That ' s
10 really the only two comparisons .
BOARD ASSISTANT KOWALSKI : The lots are
11 different . This is 150 wide . You said it was very
narrow.
12 MS . MOORE : The front is 90 .
BOARD ASSISTANT KOWALSKI : Where the garage
13 is going, it ' s 150 .
MS . MOORE : No, I 'm saying the street
14 frontage, the character of the area, what you see
from the street .
15 BOARD ASSISTANT KOWALSKI : Except that the
width that the garage is at 150 .
16 MS . MOORE : Okay. I 'm not trying to debate
it . Let me clarify. On the street level, . you have
17 only 90 feet . As you drive by, you ' re going to
capture just a very small view of this garage,
18 this barn . The one who is going to be most
impacted is the Haskell property and they have
19 many barns, many out buildings on their property.
At least that ' s what I can tell from the street
20 level . You know better. So it is in character and
I would hope that you keep that in mind because
21 the code is constantly adopting regulations that
don ' t fit the circumstances of the individual
22 properties and that ' s your role . And I ' d keep
that in mind. Also, he wishes to have five feet .
23 He said he begrudgingly accepts seven feet . But if
the Board comes up with another measurement and
24 they say sorry, the only way we ' re going to accept
this is by x feet . Rather than deny the request, I
25 would suggest you grant it at whatever it is . He
can decide at that point to build it or not to
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 build it .
BOARD ASSISTANT KOWALSKI : We offered that .
3 But he didn ' t want to do that .
CHAIRMAN DINIZIO: No, we can do that .
4 MR. SMITH : I had an opportunity to sit and
listen . Let me think this out . If I stayed twenty
5 feet and twenty-two feet, I don ' t need to come
here?
6 THE BOARD: Right .
MR. SMITH : Which would put the garage behind
7 the walnut , block up the entire yard and be
unusable? So, I 'm not going to do that even if you
8 grant me twenty feet, if you grant me the seven
inches , you ' re not doing me any favor or the
9 property or the walnut tree because then it ' s got
to go . Because I ' ve got to get in the garage and
10 it ' s the only way in. So I 'm going to assume that
seven inches isn ' t a big deal, the pergola is not
11 a big deal but someplace between five and
nineteen, life is getting better. And the reason I
12 need to know that before I leave the room is if
you grant me fifteen, it still has the same
13 problem. There ' s a limit of how far -- I said
seven because I 'm afraid when you keep pushing it,
14 I 'm going to have a problem maintaining .
BOARD MEMBER SIMON : We can ' t negotiate this
15 today.
MR. SMITH : I 'm trying to help you consider
16 that if you think twenty is going to work, it ' s
not a helpful thing for the property at all .
17 MS . MOORE : If we could read the bubble over
your heads with the number --
18 BOARD MEMBER WEISMAN : We don ' t have a
number .
19 BOARD MEMBER SIMON : Each of us has a
different head.
20 CHAIRMAN DINIZIO: One person talk at a time .
BOARD MEMBER GOEHRINGER: I would like to
21 speak because it happens to still be my file . The
ability to go in with an open mind as my
22 colleague, Ms . Weisman has said, and the ability
to negotiate a specific number is the most
23 important thing that this Board has in the
deliberation aspect and that ' s what we do . It is
24 the most democratic process that exists anywhere .
That is the thing that a person needs to do in
25 dealing with any application, this one, in
particular, and that ' s the reason why I 'm happy to
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 go out --
MR. SMITH : We ' re listening to you.
3 BOARD MEMBER GOEHRINGER: Thank you.
CHAIRMAN DINIZIO : May I say something as
4 Chairman? Quite honestly, I ask the questions
because I think it would be unkind of me not to .
5 I ask those questions and I tell you how I 'm
thinking because I want you to convince me
6 otherwise . That doesn ' t mean that you haven ' t .
But what it does mean is that, you know, when you
7 went from three feet to five feet , you turned the
building around, there ' s an existing building
8 there . All those things need to be plead to us .
We need to hear them in a manner in which --
9 you ' re the property owner . You ' ve got to live with
it . We don ' t have to, okay. If I didn ' t tell you
10 that five feet is not going to happen as far as
I 'm concerned, how would you know enough? You
11 would be able to listen to us on July 12th but not
ever have any more say about it . I don ' t want you
12 to think that I ' m trying to stifle you . I 'm asking
the questions that have to be asked as far as I 'm
13 concerned. I 'm not insulted by any of your
answers and I hope you ' re not insulted by any of
14 my questions because it is the applicant that I
care about mostly. If I don ' t ask those questions
15 and they come up in the hearing, in our
deliberations , and you don ' t have an opportunity
16 to question them, then I haven ' t been fair to you .
So, good luck to you in our deliberations . If you
17 don ' t have anything else that you ' d like to add to
this, we ' ll ask the audience if they would like to
18 add something . Michael, did you have something
that you wanted to say?
19 BOARD MEMBER SIMON: Just to expand and agree
with what Gerry was saying . I said we ' re not here
20 to negotiate . If there is what Gerry called
negotiation in the session is not really
21 negotiation because the applicant is not involved.
He can listen but he can ' t participate . But I
22 agree with Jim. We ' re here to be doing our job,
to hear you and your representative make the
23 strongest possible case for your opinion . We
don ' t strictly speaking have any business arguing
24 with you except asking, we hope are provocative
questions . But we ' re not arguing . This is your
25 chance and you may persuade one of us of the Board
that you ' re right and then we go into deliberation
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r . 1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 and the one of us can persuade two others . That ' s
how it may work. So it ' s a process which has
3 several aspects and I want to continue doing both
of them.
4 MS . MOORE : One last point, it was occurring
to me as I was looking at this drawing, I think at
5 the last hearing, he mentioned the use of it, that
he has various vehicles and has antiques and so
6 on . You could accomplish that by multiple
buildings but it pollutes a property. When one of
7 you suggested, you can ' t you shrink it? Well, to
shrink it means that he ' s got to think about other
8 buildings , other structures to accomplish the same
task. This, he ' s come up with a design that takes
9 care of all is needs and looks in character with
the barn and agricultural look of the property.
10 Yes , it doesn ' t look just like a normal garage but
it shouldn ' t . It ' s on the Main Road. It ' s a
11 scenic byway . Every structure should look like a
beautiful old bar but to do so means every
12 structure that wants to look like a beautiful old
barn has to come to you. Because we ' ve legislated
13 the character right out of the code . Last time I
felt very strongly hearing it and said my God,
14 here we are . We can ' t do what all the policies
and all the regulations seem to be forcing us to
15 do . But that ' s not your problem. That ' s a
legislative function . I think that they ' ve
16 presented you a very beautiful structure that has
no impact on -- a neighbor has expressed absolute
17 support for . That ' s really what you should be
looking at . Not agonizing over how much of a
18 variance are we exceeding but how does this --
this exceeding a limitation affected the neighbor.
19 I know you guys are always looking at that . In
this instance, that ' s not the case . You don ' t have
20 that situation . It ' s been a long day and I ' ll
shut up .
21 CHAIRMAN DINIZIO: Thank you, Pat . Does
anybody else have anything else to say on this
22 matter? Anybody for or against in the audience?
I ' ll entertain a motion that we close this
23 hearing .
(See minutes for resolution . )
24 ***************** *******************
Hearing # 6058 - O ' Reilly.
25 CHAIRMAN DINIZIO : Ruth, we ' re going to start
without you, all right?
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 The next hearing is for Hugh and Anne
O ' Reilly. It ' s application 6058 and that ' s yours
3 Leslie .
BOARD MEMBER WEISMAN : Good afternoon . I 'm
4 just going to read this Legal Notice into the
record.
5 "Request for Variance under Section 280-124
( 100-244 ) , based on the Building Inspector ' s June
6 4 , 2007 Notice of Disapproval concerning an
as-built demolition of an existing dwelling, with
7 new construction at less than the code-required 40
feet on this 37 , 375 square foot lot . The new
8 construction activities commenced under Building
Permit #32434-Z , at 25 Lighthouse Road (at
9 intersection with North Road) , Southold. "
As I understand it, I presume you represent
10 -- would you jus state your name for the record.
MR. CAMMERATA: My name is James Cammerata .
11 I 'm acting as the agent on behalf of the
O ' Reillys . I designed the house with the intention
12 that we would save existing one-story and
two-story section of the house . When we started
13 construction and we lifted the house up to repair
the existing floor, we found that the house was
14 built on boulders . The house is probably 150-200
years old. And it was a boulder foundation with
15 floor of brick. In my absence, the O ' Reillys
hired a contractor to come and to repair the
16 existing perimeter of the foundation maintaining
the crawl space and actually, all they did was put
17 a new foundation under the existing. There was no
excavation for a basement . It remained a crawl
18 space and we went to lower the house back down
onto the new foundation and because the existing
19 home was built literally at grade level, the
runoff from the property had rotted out the sill
20 plate and the existing home was built as a post
and beam. So we didn ' t have wall studs every
21 sixteen inches . We had like four by tens on the
corner with intermediate posts . Again, in my
22 absence, the homeowner, who did most of the work,
took it upon himself to replace the damaged wood
23 and as he took a piece off, more termite damage,
water rot was found until it got to the point
24 where he just -- if a wall was twenty-five feet
long, he replaced exactly what was there . Again,
25 I wasn ' t consulted and then the house was
basically brought up to the current building code
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 with regard to strapping and the required angle
bolts . Then he called me and said he received a
3 stop notice and that he needed as-built drawings .
So I went to the house . What the O ' Reillys
4 basically did was to remove what was there and put
back exactly what was there in the same location .
5 We submitted the as-built drawings to the Town as
required detailing the work that was done . We were
6 informed that a variance was required . I went and
I meet with Damon and Mike Verity and I explained
7 to them what happened and they made a field
inspection to ensure that what was on the drawing
8 is exactly what was in the field. It wasn ' t their .
intention to present one project to the Building
9 Department and then build something else . They are
not from the area so they ' re not really familiar
10 with what the amount of latitude they have
regarding the work they can do . So they took it
11 upon themselves to lift the house up a couple of
feet because of the runoff and they didn ' t want to
12 have the same problem again . So they basically
removed and replaced. One could argue it ' s a
13 restoration and one could argue it ' s a brand new
construction . But at what point do we say that a
14 restoration isn ' t a reconstruction . If you look at
the inspection reports, you can see that they
15 called for the proper inspections at different
levels of construction . So they basically tried to
16 comply. What this basically has done to them is
it forced them -- they are in a position now, they
17 cannot keep the house because of the overrun on
the repairs and now it ' s for sale . Unless they
18 are allowed to resume the work, every month they
pay the mortgage, they risk going into default on
19 the mortgage because of the delay in the
construction . So basically we ' re asking not for
20 anything other then what was on the original
plans . We ' re asking for the approval to continue
21 the work. We also found out that now it ' s
considered new construction . We submitted the
22 drawings for the new septic system and now we ' re
waiting for the application to go in for the
23 Health Department and we have everything in line .
But like I said, the longer they' re delayed, this
24 is a financial burden on them that they didn ' t
expect to pour a new foundation for the whole
25 house and basically replace the walls . That ' s all
I have to say regarding that . Thank you .
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1 ZONING BOARD OF APPEALS JUNE 28 , 2007
2 BOARD MEMBER WEISMAN : So they hired you to
renovate? You ' re not the builder, you ' re the
3 designer?
MR. CAMMERATA: Right . I designed the home
4 for them.
BOARD MEMBER WEISMAN : So you were designing
5 a renovation?
MR. CAMMERATA: That ' s correct .
6 BOARD MEMBER WEISMAN : And you ' re local?
MR. CAMMERATA: I 'm from Hampton Bays . It ' s
7 basically my first project in Southold.
BOARD MEMBER WEISMAN : But they were doing
8 the construction themselves or they had subs
working with them or they were doing the hands on
9 work?
MR. CAMMERATA: The homeowner is a carpenter
10 and he started to do the work himself . He actually
jacked the house up by himself with a car jack. I
11 have the picture here . He made a sandwich of
2x12 ' s holding the house together and he lifted it
12 up . The original permit allowed for new roof on
the existing two-story and the existing one-story.
13 So he already had a permit for that . So he took
the existing roof rafters off on the one and
14 two-story and then he did all the demolition
inside and he basically lifted the four outside
15 walls and that ' s when it --
BOARD MEMBER SIMON : Did he have a permit for
16 the original demolition?
MR. CAMMERATA: I would think the original
17 building permit allowed for that because it was
very explicit on the drawing what would be removed
18 and repaired.
BOARD MEMBER WEISMAN: Well, here we go
19 again. This is -- you ' re here now -- at what
point did you get the stop work order?
20 MR. CAMMERATA: When they were ready for
sheet rock. The house was already sided, the
21 windows, the roofing .
BOARD MEMBER WEISMAN: It ' s sheet rocked now.
22 MR. CAMMERATA: No, it ' s not . They stopped
when they were told. The mason who did the
23 foundation had submitted the photographs of the
foundation repaired to the Building Department and
24 they exist in the file at the Annex. If you look
at the existing report, the two different -- on
25 12/6, whoever inspected it said the first floor
foundation is okay and they need a foundation
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 location survey and revised plans for all changes .
That really wasn ' t brought to my attention until
3 three weeks ago, maybe a month ago . Then on the
bottom in additional comments, it says 12/19/06,
4 foundation location survey not required. So
there ' s basically a conflicting information on
5 here . The O ' Reillys didn ' t call me until they
received a stop work order, we don ' t understand
6 why.
BOARD MEMBER WEISMAN : So they were
7 proceeding getting inspections all along and
essentially, rather than a renovation, it wound up
8 a demolition and new construction . I mean what
part, if any, of the original bearing walls
9 remain?
MR. CAMMERATA: What part, if any? In the
10 existing one-story, there were -- all four walls
of the foundation were saved but the contractor
11 built on top of it . If you go inside the home,
you will see, not many, but some of the existing
12 4x10 posts that compromise --
BOARD MEMBER WEISMAN : Corner posts?
13 MR. CAMMERATA: Well, it ' s not necessarily
the corner . He may have saved an intermediate
14 horizontal beam and not a vertical and I really
cant tell you what exactly, what was saved and
15 what wasn ' t but what I can do is say that what was
there was replaced or repaired, however you want
16 to look at it .
BOARD MEMBER WEISMAN : Well, I think the way
17 to look at it is that it ' s new construction that
is identical in spacial configuration and exterior
18 to what you would have renovated had they not
found so many structural problems with rot. and so
19 on; is that a correct characterization?
MR. CAMMERATA: Yes . They basically would
20 have preferred not to have to put a new foundation
there and the fact that it ' s a corner lot and it
21 has two front yards really and the piece is
trapezoidal in shape, it really limits them if
22 they said we ' re going to knock the whole house
down and put exactly what we did -- they really
23 couldn ' t place that house on the lot the way it is
if it was torn down and relocated because there ' s
24 forty and forty and then the back was , I believe,
fifty and then they gave them a fifteen foot side
25 yard on the west side of the property. There
would be no rear yard if it was moved within the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 required setbacks .
BOARD MEMBER WEISMAN : At the moment,
3 assuming this -- examining this as a tear down and
new construction, you need a front yard set back
4 variance of seventeen feet three inches which
would be on North Road.
5 MR. CAMMERATA: That ' s what they have .
BOARD MEMBER WEISMAN : You have two front
6 yards . Yes, that ' s what ' s there now. That ' s what
they rebuilt . They rebuilt in kind and it ' s the
7 architectural side yard, all though it is
technically a front yard because of the street,
8 and you have no variance required for the frontage
along Lighthouse Road.
9 MR. CAMMERATA: That ' s correct .
BOARD MEMBER WEISMAN : I just want to make
10 sure that I ' ve characterized this -- in other
words, it went beyond the scope of the building
11 permit as was originally granted which was a
renovation; is that right?
12 MR. CAMMERATA: That ' s correct but it didn ' t
go beyond the scope of the original building
13 permit .
BOARD MEMBER WEISMAN : The building envelope,
14 the type of house?
MR. CAMMERATA: That ' s correct .
15 BOARD MEMBER WEISMAN : Okay . I understand
that . So they rebuilt the house that was there
16 with new materials in the same place?
MR. CAMMERATA: One could argue that and one,
17 again, could argue that it was a repair of an
existing .
18 BOARD MEMBER SIMON : Maybe I don ' t have a
complete set of papers here . First of all, the
19 record, the property record I have only goes up to
1985 . Does anyone have a more recent one? When
20 did the O ' Reillys acquire the house?
MR. CAMMERATA: In the summer of 2006 .
21 BOARD MEMBER SIMON : Have they ever lived in
it? They ' ve never lived in it .
22 MR. CAMMERATA: No . The house was not
livable, habitable .
23 BOARD MEMBER SIMON : It was empty.
BOARD MEMBER WEISMAN : How old is the house?
24 What year did you say the house was approximately?
MR. CAMMERATA: They purchased the home in
25 the summer of 2006 .
BOARD MEMBER WEISMAN : No, how old is the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 house, the original house?
MR. CAMMERATA: I would say about 150 years
3 old.
BOARD MEMBER SIMON : And they purchased an
4 empty house and he proceeded to renovate himself .
I haven ' t seen the building for the
5 original renovation so we can only take it on
speculation and report . They bought this house and
6 got a permit to do something and it turned out it
didn ' t work. So do we even know whether it was
7 going to be a renovation or whether it was going
to be a virtual replacement?
8 MR. CAMMERATA: On the original drawings that
I provided, it was very clear that certain pieces
9 of the structure were going to be removed and
replaced. We couldn ' t specify the exact amount
10 until the plaster walls were taken down and the
flooring and carpeting and sub floor were ripped
11 up .
BOARD MEMBER SIMON : Do we have this building
12 permit when you applied? You applied for the
building permit?
13 MR. CAMMERATA: Right . I did the expediting
for them and then they basically decided that they
14 would oversee the construction. So I basically was
not involved where they called and said we ripped
15 the first floor out . There ' s boulders for a
foundation and there ' s four courses of brick on
16 top of it . I wasn ' t made aware that they went
beyond the scope --
17 BOARD MEMBER SIMON : I don ' t think I ' ve seen
the original building permit application . I don ' t
18 know if we have it or not .
BOARD ASSISTANT KOWALSKI : It ' s possible
19 maybe he can make a set of the whole file that you
have with the Building Department and provide the
20 Board with it?
BOARD MEMBER SIMON : Because we don ' t know
21 what you first saw when you first came in there .
BOARD ASSISTANT KOWALSKI : He only gave
22 copies of the initial page but there ' s nothing
much --
23 MR. CAMMERATA: I believe I gave seven
reduced copies of the whole job .
24 BOARD ASSISTANT KOWALSKI : It was of the
first page and whatever, the inspection record.
25 MR. CAMMERATA: I gave this . Does everybody
have this ten page set of drawings?
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD ASSISTANT KOWALSKI : Is that the same
set that you gave to Building Department with the
3 first permit , with the original permit?
MR. CAMMERATA: This is actually the as-built
4 condition .
BOARD ASSISTANT KOWALSKI : He ' s talking about
5 the original permit .
BOARD MEMBER SIMON : I 'm talking about the
6 application . These are plans . We have these, the
drawings, the designer drawings . They seem fine .
7 But what we don ' t have is the paperwork in English
about what was applied for and the usual set of
8 questions and answers that we see .
BOARD MEMBER GOEHRINGER: I suspect that was
9 the original from the O ' Reillys?
MR. CAMMERATA: Right . I have a copy of that .
10 Would you like to see it?
BOARD MEMBER SIMON : That ' s the permit
11 itself . That we have . We don ' t have the
application for the building permit .
12 MR. CAMMERATA: Oh, you want a copy of the
application?
13 BOARD MEMBER SIMON : Can I just see this?
This is dated October 18 , 2006, additions and
14 alterations . Is that to existing single family
dwelling accessory garage .
15 CHAIRMAN DINIZIO: Can I interject here for
just a second? I understand what you ' d like to
16 see, Michael, but the Building Inspector made a
decision based on the record.
17 BOARD MEMBER SIMON : Which we haven ' t seen .
CHAIRMAN DINIZIO : Right . Unless we ' re
18 looking to make it so that the Building Inspector
did something improper, I think that we ought to
19 address the application as has been applied to for
us and trust in the hardship that this gentleman
20 is presenting in that he presented to the Town,
the Building Inspector, one thing and got a permit
21 and relied on that to the point where there were
other things that we came up which we dealt with
22 three other times today. Now, in my mind that
what the Building Inspector did -- looked at to
23 grant this gentlemen the original building permit
to my mind is irrelevant to the fact that these
24 people have a, are claiming a hardship based on a
further decision that the Building Inspector made .
25 Which is deny them.
BOARD MEMBER SIMON : My other question is,
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 though it ' s not what the Building Department did
but the condition of the house and the
3 circumstances that then led up to this series of
catastrophes essentially that that put you in the
4 situation that you ' re in now . When the Building
Department gives a permit, they don ' t look at the
5 house, do they?
CHAIRMAN DINIZIO: No .
6 BOARD MEMBER SIMON: Did anyone see it? You
didn ' t see it until much later on .
7 MR. CAMMERATA: That ' s correct but what I do
have, and I believe it ' s in your file, is copies
8 of the existing home that we ' ve jacked up .
CHAIRMAN DINIZIO: Which is well after you
9 got the building permit .
BOARD MEMBER SIMON : It was well after you
10 got the building permit .
MR. CAMMERATA: Right but it ' s also my
11 understanding that there is some leeway that the
contractors have regarding how they repair the
12 home . Now what the pictures show is that there
was a good faith effort to save -- somebody
13 wouldn ' t go through the trouble to jack up a home
and then put a new foundation and then rip down
14 what was existing after. Especially, we can
understand the Town ' s concern if this was done and
15 the house was sided and sheathed and all the
windows and the mahogany deck and then we called
16 for an inspection. That ' s not really the case . The
case was there was a foundation. There was a call
17 for an inspection on a foundation, a framing, the
sheathing, the strapping . Even to why were they
18 allowed to insulate?
BOARD MEMBER SIMON : That ' s an issue . I ' m on
19 the same page as you on. this . I 'm not suggesting
anything about intention . I agree with you
20 completely. They wouldn ' t have done what they did
if they were going to play bait and switch or
21 something like that . I agree with you . Just the
question of how did it happen that this thing went
22 along this way and nobody who was able to or
willing to look at the condition and to have
23 anticipated the kind of problem and go to the Town
and say look, we ' re going to have a lot of
24 problems with this house and we need some kind of
paperwork before we build it or before we rebuild
25 it .
MR. CAMMERATA: Well, as I said, I was hired
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 just to provide the set of drawings . I wasn ' t
hired to oversee the construction . If I was there,
3 I believe that there are certain requirements , 500
of the structure or 750 or 250 , whatever the
4 number in the code, that before you proceed, you
really should have an inspector come . We
5 appreciate the fact that Mr . Alice and Mr . Verity
took the time to come into the field and inspect
6 to ensure that we did not present one set of plans
to the Town and then we build something else . We
7 could understand the Town ' s concern if we said
we ' re building a house with three bedrooms and
8 then we gave you one set of plan and then when
they inspected it, there were six bedrooms . We
9 could understand the Town ' s concern if we say
we ' re going to build something 40x30 and then it
10 turns out that we snuck another twenty feet in
there hoping you wouldn ' t catch that . That ' s not
11 what we did.
BOARD MEMBER SIMON : I understand that and
12 we ' re really -- this really isn ' t our business .
In fact, what we ' re going to do is try to do the
13 best we can to decide whether the variance we ' re
asked to provide would have been one we would have
14 given in the first place had everything gone
through . It ' s just you come and you see a house
15 that ' s already finished and there ' s a seventeen
foot setback that should be forty, how did it get
16 this far is the question that anybody would ask. I
realize that you probably had no part in this
17 chain of command thing because you came in later
on .
18 MR. CAMMERATA: The O ' Reillys contention is
that the house was always at seventeen feet and
19 the house existed before the road existed. Their
other contention is is that the runoff from the
20 property is really responsible for the damage done
to the foundation and the sill due to the fact
21 that the house was built at grade . Now, they ' re
not opposed to filing for the proper paperwork.
22 They feel that the inspectors who came when they
saw the house jacked up and the new foundation,
23 that they should have been informed of this in
December of 2006 and not be allowed to come and
24 frame and sheath and side and put down a mahogany
deck porch. They want to know why they were
25 allowed to complete 750 of the home before the
stop order .
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1 ZONING BOARD OF APPEALS JUNE 28 , 2007
2 BOARD MEMBER WEISMAN : That ' s actually the
question I was going to ask.
3 MR. CAMMERATA: They have no problem
complying with the building codes , the local .
4 They filed for the permit . They called for the
inspections . Really their opinion is that the
5 building inspector should have been consistent in
his assessment of whether it was new construction
6 or it was renovation . That ' s the only point . They
are not interested in arguing with the Town . They
7 don ' t want to -- they ' re in a place where if they
can ' t continue the work, they ' re probably going to
8 go in default on the mortgage and then the house
is going to be taken from them.
9 BOARD MEMBER SIMON : I understand and I found
your presentation to be very, very helpful . Do you
10 think it would be fair to say that you ' re here to
ask us to bail out the building department?
11 MR. CAMMERATA: I ' m not looking to assess
who ' s fault . I 'm not looking to pit the Zoning
12 Board against the Building Inspectors and who ' s
fault it is . I 'm interested in getting the
13 O ' Reillys sheet rock on the wall .
CHAIRMAN DINIZIO: Let ' s not go there . We
14 don ' t need to go there .
MR. CAMMERATA: I didn ' t bring that up .
15 Mr . Simon did.
CHAIRMAN DINIZIO: No, I know. Michael, do
16 you have anything else relevant to this
application?
17 BOARD MEMBER SIMON : No .
CHAIRMAN DINIZIO: Ruth?
18 BOARD MEMBER OLIVA: I was there and I feel
sorry for you . You just got started and you got
19 stopped a little after the fact . I don ' t have a
problem. You were always 17 . 3 . It ' s a beautiful
20 house . Live and be well .
MR. CAMMERATA: Thank you .
21 CHAIRMAN DINIZIO: I know that neighborhood
quite well and quite honestly that house has
22 always been a part of that street .
MR. CAMMERATA: Maybe you can consider that .
23 CHAIRMAN DINIZIO: That ' s why I made the
comment . Do I have any more comments on this for
24 or against? Michael, get up at your own peril .
BUILDING INSPECTOR VERITY : Just quickly on
25 the project . Just to answer some questions in the
future if it ever comes up . Again, Michael Verity,
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 Chief Building Inspector . The reason why, you
want to know how it went so far along. The
3 inspector went out . He reviewed the foundation.
Requested the amended plans and right now it ' s not
4 policy but it may be policy, we try not to stop
people at that time . We hope that they bring them
5 in a timely fashion . As you know, he just found
out a few weeks ago that he needed the amended
6 plans . If we had the amended plans at the time it
was requested, quite some time ago, the Building
7 Department could have said, hold on, stop . But it
wasn ' t at that point yet . They put the new
8 foundation under an existing building regardless
of what the setbacks, seventeen feet, two feet,
9 three feet . We would allow that . That ' s allowed.
Crawl space in place and kind. Basement now,
10 different story. You can ' t do that . You ' re
increasing it whether you ' re going up or down.
11 You ' re increasing it . In place and kind, we don ' t
have a problem with that . They went to set it
12 back down, we weren ' t aware of that . It kind of
fell apart . They went around doing their work.
13 They got to the framing inspection now. There ' s a
big delay in time from a foundation to framing a
14 house . It could be six months, it could be three
months , it could be a year . So we ' re not there, so
15 there ' s a big time lapse . Now that we go back,
there ' s a question . Where are the revised plans?
16 Is it new construction, old construction, in place
and kind? At that point in time, the
17 determination was made . So it ' s not like we had
continuous inspections weekly and finally caught
18 them a month later or six months later and we were
there week after week after week. That wasn ' t the
19 case . We were there at the foundation where it was
just going to be a foundation repair . Set down the
20 existing building, not a problem. But then when we
went back, the framing was done, it ' s basically a
21 new construction and that ' s where the problem lies
right now. It was tastefully done . Not opposing
22 the project at all . If I can say I 'm in favor of
it, I am. This is totally not an abuse of the
23 process, it really wasn ' t . I would say the roof
pitch is -- everything is almost identical to the
24 original house . I don ' t think they were trying to
gain anything by doing this . It was just lack of
25 communication, I would have to say. I ' ll
definitely, as head of the Building Department
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 take some responsibility for that . I think it was
lack of communication on both sides . But when we
3 request something, there ' s a reason why we request
it so we can make a determination at that time .
4 But we don ' t have the ability to stay on top of
the file like that . Once we request that, we are
5 relying on the applicant or the builder, general
contractor, whomever to get that information back
6 to us so we don ' t have to chase a file all day
long or whatever .
7 BOARD MEMBER SIMON : I appreciate you ' re
answer, I really do . I wasn ' t suggesting it was an
8 abuse of the system. A problem of gaps in the
process .
9 BUILDING INSPECTOR VERITY: I understand
that .
10 BOARD MEMBER SIMON : The problem is the
process -- I don ' t believe the process was abused.
11 I 'm just frustrated about the inadequacy of the
preordained process .
12 BUILDING INSPECTOR VERITY: Out of all of the
as-builts situations that you ' ve heard in the last
13 few months , this is probably the --
BOARD MEMBER GOEHRINGER: Closest not to be
14 stopped.
BUILDING INSPECTOR VERITY: Exactly. I hate
15 to say it ' s like a coin toss but it ' s like a coin
toss . You hate to do it but you kind of have to .
16 It ' s not like you said, he didn ' t come in with a
bulldozer and say take it right down . They tried
17 to do the right thing and follow the right steps
and it just didn ' t play out that way.
18 BOARD MEMBER SIMON : I agree with Leslie and
others that we cannot state our opinions here but
19 I can make a prediction on what I ' ve heard and I
don ' t know what ' s going to happen until we have
20 our hearing. I predict I will probably agree with
you as to the accessibility of this as-built
21 regardless of it or in spite of or because of its
history.
22 BOARD MEMBER WEISMAN : It ' s an architectural
side yard even though it ' s a front yard in terms
23 of the actual original siting of this very old
house . It ' s a very quite street and if it was a
24 side yard, you wouldn ' t need a variance . I think
it ' s clear what the process was and why it
25 happened. It ' s what happens when you ,get into the
field and you go beyond the scope of drawings .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 Drawings are theories and then they have to be
built . I don ' t really have a problem.
3 BUILDING INSPECTOR VERITY: Not to repeat
what he said but, again, he didn ' t come in and
4 knock down --
BOARD MEMBER WEISMAN : It ' s clear that this
5 guy was trying very hard to comply with
everything.
6 BUILDING INSPECTOR VERITY: He was trying to
do the right thing . He was going piece by piece
7 hoping he could reconstruct and unfortunately it
turned into pretty much a total rebuild that now
8 does need a variance . No fault of anyone .
CHAIRMAN DINIZIO: Okay. We are looking at a
9 variance here, right? Not just over turning a stop
work order?
10 BUILDING INSPECTOR VERITY : Yes . Just a
request of a variance and with the variance we can
11 allow them to continue .
CHAIRMAN DINIZIO: Okay. So it ' s not like
12 today we can vote and say rescind the stop work
order and they can go to work? We need to write a
13 decision based on the variance .
BOARD MEMBER WEISMAN : We have to write it
14 up . I ' ll write it up.
CHAIRMAN DINIZIO : So anybody else wish to
15 speak about this application, for or against? I
guess we ' re done up here on the Board, right? So
16 I ' ll entertain a motion to close this hearing
until July 12th .
17 (See minutes for resolution . )
18 Hearing #6046 - Oak.
CHAIRMAN DINIZIO: Our next hearing is for
19 Jeffrey and Carol Oak.
BOARD MEMBER WEISMAN : That ' s mine .
20 CHAIRMAN DINIZIO: Leslie, if you want to
read that .
21 BOARD MEMBER WEISMAN : I 'm just for the
record going to read the notice of this .
22 "Request for Variance Under Section 280-124 ,
based on the Building Inspector ' s April 25, 2007
23 Notice of Disapproval, amended May 7 , 2007
concerning proposed additions and alterations to
24 teh existing dwelling at less than 35 feet from
the front lot line, at 375 Grove Drive, Reydon
25 Shore Lots 20 & 21 (combined as one lot ) ,
Southold. "
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 Looks like you want to put on a very small
addition, like 60 square feet, like two and a half
3 foot .
MR. UELLENDAHL : My name is Frank Uellendahl .
4 I 'm representing the Oak family. Yes, it ' s 60
square feet, it ' s basically two and a half feet
5 that we would like to extend the sunroom into the
front yard. We, of course, would have to reframe
6 the roof but if you look at this proposed and the
original elevation, it will look very similar .
7 The windows make get somewhat larger but the
benefit that the family will have is that they can
8 use this room as a dining room. Right now it ' s shy
of 9 feet or 8 foot 6 in width . With a fireplace
9 in the middle of it, it ' s really not very useful .
They would like to renovate the kitchen this fall
10 and that is why we ' re here today to ask for a
variance to increase the sunroom. The sunroom
11 will have a french door on the south side and we
also would like to replace the wooden deck on top
12 of the existing patio and extend it to the
sunroom. So -that ' s basically the second issue
13 which will also affect the front yard .
BOARD MEMBER WEISMAN : So we ' re talking about
14 reducing the front yard setback from the existing
at 22 . 5 feet to 20 feet?
15 MR. UELLENDAHL : Yes, actually it ' s right
now, the existing is 25 . 4 and the proposed will be
16 22 . 9 .
CHAIRMAN DINIZIO : That ' s what the Notice of
17 Disapproval says . Could you speak up a little sir,
maybe put that microphone .
18 MR. UELLENDAHL : Sure .
BOARD MEMBER WEISMAN : Well, I must say that
19 the other houses in the neighborhood are sort of
similar in that they ' re all sited to the street
20 which curves anyway. The character of the
neighborhood has substantial questions including
21 the one right next door which the so-called entry
is relative to the street orientation to the side
22 elevation . That ' s fairly typical in the area .
You ' d be approaching just a couple of feet into
23 that so-called front yard which is really an
architectural side yard. Your plans are, as
24 always, very clear . Color diagrams make it very
simple to understand. Everybody knows what ' s there
25 and what ' s being added. I don ' t have any further
questions or problems .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MR. UELLENDAHL : Thank you.
CHAIRMAN DINIZIO: Michael?
3 BOARD MEMBER SIMON : I have no questions .
CHAIRMAN DINIZIO: Ruth?
4 BOARD MEMBER OLIVA: No, I don ' t have any
questions either .
5 CHAIRMAN DINIZIO: Gerry?
BOARD MEMBER GOEHRINGER: No questions .
6 CHAIRMAN DINIZIO: I have none either . I ' ll
ask you, sir, do you have anything else that you ' d
7 like to add to this application?
MR. UELLENDAHL : No that would be it .
8 CHAIRMAN DINIZIO: Is there anybody here wish
to speak for or against this application? Hearing
9 none, I ' ll entertain a motion to close this
hearing to July 12th.
10 (See minutes for resolution) .
11 MS . MOORE : Excuse me . I didn ' t realize there
was going to be a whole contingency of people out
12 in the hallway, his clients . We ' re asking that our
application be held in abeyance . I 'm sorry,
13 Iavarone, because my clients are now reconsidering
whether they are going to even do any alterations .
14 BOARD MEMBER WEISMAN : We ' re not even up to
you.
15 MS . MOORE : No, I know .
CHAIRMAN DINIZIO: Hold on .
16 MS . MOORE : If I could just -- because we ' re
going to ask for an adjournment because we may not
17 need variances if we demolish the house and
rebuild with proper setbacks .
18 CHAIRMAN DINIZIO : Can you wait five minutes
on that?
19 MS . MOORE : Us?
BOARD ASSISTANT KOWALSKI : We had promised
20 Mr. Ham a certain time . He has to leave .
MS . MOORE : Oh. I 'm so sorry.
21 *************************************
Hearing #6042 - Lyon at FI
22 CHAIRMAN DINIZIO: Okay, so it ' s Frank R.
Lyon and Natalie Du Pont Lyon . It ' s yours again,
23 Leslie .
BOARD MEMBER WEISMAN : It ' s mine . Let me just
24 read the notice for the record.
"Request for Variance under Sections 280-14
25 and 280-122, based on ZBA Interpretation #5039
(Walz Application) , and based on the Building
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 Inspector ' s April 24 , 2007 Notice of Disapproval
concerning a proposed additions and alterations to
3 a (nonconforming) third-story bedroom in an
existing single-family dwelling, which will
4 constitute an increase in the degree of
non-conformance (third floor/third story) , at 8
5 Shingle Hill Drive, Fishers Island. "
So I see that you ' re proposing really a
6 dormer bedroom addition?
MR. HAM: Yes, just let me give my
7 appearance . Stephen Ham, 38 Nugent Street,
Southampton. I was also asked to bring covenants
8 and restrictions . These are, I have, they ' re
common to all of these mansion house sites and
9 they really are not relevant but I can leave some
with Linda .
10 BOARD ASSISTANT KOWALSKI : Thank you very
much.
11 BOARD MEMBER WEISMAN : Mr . Ham, before you
proceed, may I just make sure that I understand
12 this correctly that you ' re proposing no increase
to the height of the existing dwelling and no
13 reduction of setbacks . It ' s about 157 square foot
dormer addition .
14 MR. HAM: The addition, the floor addition is
35 square feet, yes . From 122 to 157 . The cubic
15 foot increases by 173 cubic feet . That ' s correct .
The existing ridge of the highest point is 30 feet
16 6 inches . These figures are in the memorandum. The
highest point this new dormer will be is 27 feet,
17 6 inches . It will be within the existing
footprint .
18 BOARD MEMBER WEISMAN : Okay .
BOARD MEMBER GOEHRINGER: Why are you here
19 then?
MR. HAM: Walz .
20 BOARD MEMBER GOEHRINGER: Walz doesn ' t
address the third story.
21 MR. HAM: Well, a third story technically
couldn ' t be built today.
22 CHAIRMAN DINIZIO: It ' s an increase in the
degree of nonconformity.
23 MR. HAM: That ' s the reasoning of the
Building Department .
24 BOARD MEMBER GOEHRINGER: So the story
exists . You ' re just adding to it?
25 BOARD MEMBER WEISMAN : Right . Couple of
square feet, that ' s all .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD MEMBER OLIVA: And the tower is even
taller .
3 CHAIRMAN DINIZIO: Anybody else have any
questions?
4 BOARD MEMBER SIMON : Just a question . The
definition of a story is having 500 or more of
5 habitable space of area that has the proper height
compared with the lower floor. Is that the reason
6 why it ' s coming in as a third-story house?
MR. HAM: This is partial -- I couldn ' t give
7 you the precise square footage . I don ' t know.
Part of it is living and part is storage . I guess
8 the Building Inspector determined it --
BOARD MEMBER SIMON : It would be one and a
9 half stories if it were less than 50o but it is
more than 500 living space .
10 MR. HAM: I believe so, yes, because there ' s
a bathroom. There is some storage as well .
11 BOARD MEMBER GOEHRINGER: But it was
habitable before?
12 MR. HAM: Yes, oh yes . The bedroom has
existed as part of that structure probably for 100
13 years .
BOARD MEMBER WEISMAN : They ' re adding this .
14 BOARD MEMBER GOEHRINGER: I understand that .
The question is , the Whole issue is that in that
15 situation, this is a year-round house or summer
house?
16 MR. HAM: I believe it ' s a year-round house
but its not used year round. I asked the architect
17 that question and he didn ' t know. He remembers it
being winterized at some point so it ' s possible .
18 I can determine that but he didn ' t get back to me
on it . I did ask that question of him. Some of
19 these, I know that some of these cottages are and
some are not winterized.
20 BOARD MEMBER GOEHRINGER: I mean this gives
you the appearance of being a year-round house .
21 MR. HAM: Yes, absolutely.
BOARD MEMBER GOEHRINGER: Some of them are up
22 on piling . Some of them have no heating systems at
all .
23 MR. HAM: Right . Its use is seasonal .
CHAIRMAN DINIZIO : Ruth, do you have anything
24 to say?
BOARD MEMBER OLIVA: No .
25 CHAIRMAN DINIZIO : Anybody else have any
questions? Mr . Ham do you have anything else to
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 add to this?
MR. HAM: Just request to grant a variance .
3 CHAIRMAN DINIZIO: All right . Hearing done .
I guess nobody in the audience has anything to say
4 about this Fisher ' s Island application? Hearing
done, I ' ll entertain a motion that we close this
5 hearing .
(See minutes for resolution. )
6 ***************************************
Hearing #6047 - Iavarone
7 BOARD ASSISTANT KOWALSKI : I just want to
mention to the court reporter that we ' re out of
8 order on the schedule . We ' re moving up to
Iavarone .
9 MS . MOORE : Iavarone is scheduled for 1 : 30,
it ' s appeal number 6047 .
10 CHAIRMAN DINIZIO : Are we opening this
hearing?
11 MS . MOORE : Open it but request an
adjournment on the open hearing because I don ' t
12 know when after we ' ve redesigned everything
whether I even need a variance .
13 CHAIRMAN DINIZIO: Are we going to be hearing
testimony?
14 MS . MOORE : Not today.
CHAIRMAN DINIZIO: Not from anybody?
15 MS . MOORE : No because this plan actually was
originally -- alterations to existing residence .
16 Our plan is to demolish the residence and build in
accordance with the code .
17 CHAIRMAN DINIZIO: So, let ' s open it --
BOARD ASSISTANT KOWALSKI : There might be
18 somebody in the audience though .
CHAIRMAN DINIZIO: That ' s what I mean .
19 BOARD MEMBER SIMON: Is anyone here to speak?
MS . MOORE : Well, I have Mr . Bressler here
20 just to say, yes , he wants us to adjourn .
MR. BRESSLER: Eric Bressler, Wickham,
21 Bressler, Gordan & Geasa, Main Road, Mattituck,
New York. And I am representing William and Diana
22 Douglas and also present, please identify
yourself .
23 AUDIENCE MEMBER: Joanne Finelli .
CHAIRMAN DINIZIO: We should open the
24 hearing .
MS . MOORE : You did.
25 CHAIRMAN DINIZIO : We need to read the legal
notice and then let ' s close it, okay. So it ' s
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 open . Ruth you have the pleasure of reading this
one .
3 BOARD MEMBER OLIVA: Thank you .
"Request for Variances under Sections
4 280-122A, 280-124 , 280-116, 280-15, based on the
Building Inspector ' s September 7 , 2007 Notice of
5 Disapproval, amended May 1, 2007 , concerning
proposed additions and alterations to a
6 nonconforming dwelling and to construct a new
accessory garage . The new additions to the
7 dwelling will create a new nonconformity or be an
increase in the degree of nonconformity when
8 located less than 15 feet on a single side yard
and less than 75 feet to the bulkhead. A new
9 accessory building (garage) is proposed to be
located less than 15 feet from the side line .
10 Location of Property: 450 Wood Lane (Richmond
Creek) , Peconic . "
11 CHAIRMAN DINIZIO: Do you have any questions,
Ruth, that you ' d like to ask?
12 BOARD MEMBER OLIVA: Not at this time, no .
CHAIRMAN DINIZIO: Not at this time . So as
13 long as the Board doesn ' t have anything to ask,
we ' ll entertain your motion whatever you would
14 like to do .
MS . MOORE : A request to adjourn .
15 BOARD ASSISTANT KOWALKSI : Without a date, I
would recommend because we don ' t have the new
16 plans .
MS . MOORE : I would say push it past
17 September . Well, my client tells me he ' s going to
have a plan by August .
18 BOARD ASSISTANT KOWALSKI : I ' d like to
adjourn it without a date and when you submit the
19 new plans --
MS . MOORE : Fine, okay. You ' re right .
20 Absolutely. That ' s what we have to do . We hope
there will be no variances .
21 CHAIRMAN DINIZIO: I 'm a little concerned
about this because we have two other applicants
22 sitting here before you folks and now we ' re going
to hear testimony. I 'm going to tell you, I am
23 never going to do this again .
MS . MOORE : Well, I don ' t think you should be
24 asking for testimony. I think it should be
adjourned.
25 CHAIRMAN DINIZIO: Well, I have a lady
raising her hand now and I fell obligated to let
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 her speak and we certainly should in all fairness .
BOARD MEMBER GOEHRINGER: But Mr . Bressler
3 represents them.
MR. BRESSLER: I represent the Douglas ' . As
4 far as the other neighbors go, I ' ve not been
formally retained by them. It was my understanding
5 on behalf of my clients that I would be seeking an
adjournment since I was retained yesterday and
6 have not had an opportunity to review the file . I
think in light of what Ms . Moore has said about
7 her clients present intention, that is it not
necessary to take testimony. However, if other
8 neighbors are here and they wish to voice an
opinion, I would certainly not object to that .
9 That ' s the American way.
BOARD ASSISTANT KOWALSKI : We don ' t have
10 testimony from the applicant as to what they ' re
planning to do .
11 AUDIENCE MEMBER: I just wanted to ask a
question. I really didn ' t want to --
12 CHAIRMAN DINIZIO: Come on up, ma ' am. Just
get to the microphone and state your name, please .
13 MS . WEIR: Linda Weir (phonetic) .
CHAIRMAN DINIZIO: Address?
14 MS . WEIR: 2223 Indian Neck Lane .
BOARD MEMBER GOEHRINGER: Okay, go ahead.
15 MS . WEIR: I just need to know how we can
guarantee that 100 year oaks are not taken down
16 because four have already been taken down. It
concerns me . We built our house . I know how
17 strict everything was in 1991 . I don ' t know the
changes that have been lately. But I think they
18 were within the 75 feet . I haven ' t been able to
go over and measure so I don ' t know. But I 'm
19 afraid that they ' re going to go in and take all
these oaks down . I 'm also afraid about runoff
20 because we have a lot of runoff into Richmond
Creek. Those are my two concerns . I mean I don ' t
21 want a McMansion either .
CHAIRMAN DINIZIO: We can only address the
22 part that requires a variance . Evidently, these
people are going to submit to us a new plan so we
23 couldn ' t make a comment on any of that until we
see this new plan. Beyond that, the next time you
24 get a notice or the next time you know, come,
testify, give us all the information that you
25 would like to give us . As you see, we let it all
come out here .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MS . WEIR: But do I go to the Town of
Trustees now when they take down another tree?
3 CHAIRMAN DINIZIO: No, ma ' am. You come right
here . You come right here first . Express your
4 opinion here . This is the part of the Town that
represents the application right now . Beyond that,
5 at this point in time, we have nothing to consider
because they told us they ' re going to give us a
6 different plan . There ' s no sense in talking about
oak trees if we somehow that we find out that
7 they ' re not even going to take an oak tree down.
MS . MOORE : We ' re not going to come in for a
8 variance .
MS . WEIR: They ' ve taken down four .
9 CHAIRMAN DINIZIO: Okay. Thank you very much .
Is there anybody else that would wish to speak
10 about this . I know you came, you read the public
notice . You ' re welcome to come and speak. If not,
11 okay I hear none, I 'm going to adjourn the
hearing .
12 BOARD ASSISTANT KOWALSKI : It would be
adjourned without a date .
13 CHAIRMAN DINIZIO : Adjourn it without a date
pending new application.
14 MS . MOORE : If we submit an amended
application, I will then notice all the neighbors .
15 CHAIRMAN DINIZIO: Or you would have to
reapply.
16 BOARD ASSISTANT KOWALSKI : Or you would
confirm that you are withdrawing your application,
17 one or the other .
MS . MOORE : Well, I 'm not going to notify the
18 neighbors I ' ve withdrawn the application . I ' d
notify you, of course .
19 MR. BRESSLER: Ms . Moore was kind enough to
indicate she ' d give me notice of that as well so I
20 know what to do and plan my schedule .
CHAIRMAN DINIZIO: Why do I suspect that the
21 moment they hired him, you changed your mind?
MS . MOORE : I 'm sorry, Mr . Bressler, I don ' t
22 wish to burst your bubble but actually I sent them
off to look at the foundation very carefully to
23 make sure that we weren ' t going to need structural
changes to the foundation . Once we got talking, I
24 said to them you know, why don ' t you really
reconsider and see if you can make this conform.
25 And we met yesterday before I knew that there was
anybody in opposition to this . So they are well
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 meaning . They are trying to do things right .
CHAIRMAN DINIZIO: We need a motion.
3 (See minutes for resolution . )
4 Hearing #6041 - Reeve
CHAIRMAN DINIZIO : Next hearing is Valerie
5 and Foster Reeve . That ' s Michael ' s .
BOARD MEMBER SIMON : "Request for a Variance
6 under Section 280-105, based on the Building
Inspector ' s October 6, 2006 Notice of Disapproval
7 concerning the height of a proposed fence
exceeding the code limitation of four feet when
8 located in the front yard, at 76375 Main Road
(a/k/a Front Street) , Greenport . "
9 The issue before us is the application for a
variance on a fence of six feet rather than the
10 code required four feet .
MS . REEVE : Exactly. You need my name .
11 Valerie Reeve, the address they have me at is
76375 Main Road. I guess you need this affidavit
12 of signed posting too . Who do I give that to?
BOARD ASSISTANT KOWALSKI : Thank you very
13 much.
MS . REEVE : We moved into this house about 13
14 years ago and there was an existing fence there . A
chain link fence . Over the years, we ' ve kept that
15 fence there . We always thought it would be nice to
replace it . Since then, I guess about three years
16 ago, they raised the level of the street as well
as the sidewalk, redid the sidewalk in the front
17 of our house which made our four foot fence now
seem like it ' s about a three foot fence . In
18 addition to that, we did some landscaping. We
have some large trees there but there are open
19 areas in the front . Most of our property is front
yard and not back yard. I have two young kids . I
20 would like to have six foot fence purely for
privacy. Originally, we thought about doing a
21 wall, a solid wall so it would be privacy as well
as noise control . But I was getting estimates for
22 like $35, 000 to put a wall up there so we just
gave that up . Then I also found out that it might
23 be, it might hurt the trees -- they ' re very old,
large trees and we didn ' t want to do anything that
24 would damage the trees . Anyway, it ' s just
basically for the privacy and somewhat noise
25 control but it ' s mostly privacy. I did send out
all the notices to all the people in the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 neighborhood. I did get a few calls . Everyone
said great idea, fine .
3 BOARD MEMBER SIMON : You say noise control
but you don ' t, you ' re not overly optimistic as to
4 how affective that would be; is that correct?
MS . REEVE : It ' ll be slightly better but not
5 really that much . We are doing a tongue and groove
wooden fence so it ' ll be a solid fence as opposed
6 to something with holes in it . But mostly my
concern is the privacy because you probably know
7 the school is there, people walk back and forth
from 7-11 in front of our house all the time .
8 Greenport has just gotten much busier over the
years . There ' s more and more foot traffic there .
9 I have two kids that are 9 and 12 and they ' re out
playing in the yard all the time . It just makes
10 me very nervous .
BOARD MEMBER SIMON : Will the fence be on the
11 inside or the outside of the greenery you have
there?
12 MS . REEVE : I wanted to put the fence exactly
where the fence is now. Right now, if you were
13 inside our property, there ' s probably 25 feet of
ivy growing on the ground that has overgrown the
14 fence . An idea was to take down the existing
fence, pull back the ivy, replace it over the new
15 fence . So we looked into vinyl fences and wood and
they said with the vinyl fence, the ivy wouldn ' t
16 stick to it and wouldn ' t grow to it . So the idea
is that it will look the same basically as it does
17 now only taller and covered with ivy.
BOARD MEMBER SIMON : So would you say the
18 fence is partially to help fill in the interstices
between the greenery and thereby increase the
19 privacy? If you had solid greenery, if you had
solid, high hedges , you wouldn ' t need the fence at
20 all .
MS . REEVE : We can ' t grow hedges under there
21 because the trees are too big. They ' re enormous
trees . It ' s basically like wild roses and ivy
22 growing over there now. In the summertime there
is some amount of privacy but basically in the
23 wintertime, it ' s totally see through from the fall
on once that stuff dies off .
24 BOARD MEMBER SIMON : I don ' t have any further
questions .
25 CHAIRMAN DINIZIO : Ruth?
BOARD MEMBER OLIVA: No . You ' re right on the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 main road there . I don ' t blame you for wanting a
six foot fence .
3 MS . REEVE : Thank you .
CHAIRMAN DINIZIO : Gerry?
4 BOARD MEMBER GOEHRINGER: I have to tell you
over the years of going to Greenport, and this is
5 no offense to you, ma ' am, there were several six
foot fences along that same property, not yours
6 but I was happy to see them go . I 'm still happy to
see them go . I 'm really not in favor of this . The
7 only way I would be in favor of this is if you set
it back from the property line and the ivy was
8 allowed to grow the way it grows . I think once
you take all of that fencing out, you ' re going to
9 end up destroying the ivy. Not purposely, but it ' s
going to go . And ivy, by the way, is extremely
10 difficult to reroot once it goes . So the only real
effective way is to set it back away from the
11 existing fence . Let the ivy grow . What grows,
grows and then take down the other fence, okay. If
12 you so want to take down the other fence .
MS . REEVE : I understand what you ' re saying .
13 If you saw it , you would understand what I ' m
talking about . It ' s southern facing with huge
14 trees .
BOARD MEMBER GOEHRINGER: I ' ve seen it . I was
15 there .
MS . REEVE : Under the trees going back very
16 close to the house is tons of ivy. I don ' t think
we would have any problem for the ivy to continue
17 to grow over the front . It just takes over
everything in the yard. We ' re constantly cutting
18 it back.
BOARD MEMBER GOEHRINGER: I know.
19 MS . REEVE : It ' s been there since we bought
the house 13 years ago . We did talk about setting
20 it back a little bit . Again, the issue is with
the huge old trees . They ' re very close to the
21 road and they ' ve become closer as they ' ve made the
sidewalk wider in front of the house . Everyone
22 keeps saying you don ' t want to injure the roots of
the trees because we ' re going to have to put the
23 post down but they ' re already existing posts where
the fence is now . So there ' s about, between the
24 fence and the sidewalk, there ' s probably this much
space (indicating) . I did talk to a landscape
25 architect about placing the fence farther back and
maybe putting bushes in front . She said we can ' t
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 do that because it ' s going to harm the big trees .
There are three huge trees and one of them is over
3 100 years old.
BOARD MEMBER WEISMAN : You have a Copper
4 Beech there that ' s gorgeous and the Weeping
Linden .
5 MS . REEVE : We have the Copper Beech, the
Weeping Beech and a Silver Maple, I 'm not sure . We
6 also have a huge Chestnut too .
BOARD MEMBER WEISMAN : That ' s my concern .
7 Because if you start removing -- see a wooden post
is going to be very different in diameter then the
8 cyclone fence post, the thin little metal post .
Even there there ' s going to be some disruption.
9 However, I tend to agree with Gerry that visually
right now, as a matter of fact, those trees are
10 overgrowing on the sidewalk. You can hardly walk
under them. They probably need a little tiny bit
11 of pruning .
MS . REEVE : We ' re constantly. All summer
12 long, we ' re cutting the trees so that they don ' t
splash over onto the sidewalk. The growth is so
13 great that we ' re constantly cutting back the
growth at the sidewalk side too . So I can ' t
14 imagine that there would be any problem with it
growing again over a wooden fence that it can
15 actually attach itself to .
BOARD MEMBER WEISMAN : Well, there ' s a huge
16 amount of shade there . Although ivy does grow in
shade, I think you need -- Maureen Cullenly
17 (phonetic) .
MS . REEVE : Yes , it ' s Maureen Cullenly
18 (phonetic) and I didn ' t invent this myself . She
basically said to me there should be no problem
19 with doing this . And when I suggested that we
plant something in front of it to make it look
20 green in front until things grow over, she said
no . It should be exactly where the fence is now.
21 It was her idea, not mine . And that ' s coming from
a landscape architect who has done other work on
22 our property and examined it . Also the fence guy
we talked to, Riverhead Fence Company. And he said
23 the same thing. He said there would be no problem
removing that fence and replacing it in that spot
24 but that we shouldn ' t set it back farther.
BOARD MEMBER WEISMAN : My only concern would
25 be that, right now it ' s very lush . Visually, it ' s
not obtrusive . It looks very harmonious, looks old
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 and historic . What I would not like to see is a
plain six foot high wooden fence along the
3 sidewalk on Main Street in Greenport .
MS . REEVE : I feel the same way.
4 BOARD MEMBER GOEHRINGER: The old ones looked
horrible when they were further down the block.
5 MS . REEVE : I 'm not familiar with what was
there before .
6 BOARD MEMBER WEISMAN : You also want to do a
return 24 feet along the side six foot high which
7 you can do because it ' s a side yard.
MS . REEVE : Oh, really? I didn ' t know .
8 BOARD MEMBER WEISMAN : The application calls
for 180 feet .
9 MS . REEVE : I didn ' t know. I was wondering
-- so that, I don ' t have to have a special
10 application for the side yard.
BOARD MEMBER WEISMAN : Actually, depending on
11 where the other house is next to you, I think you
have to step it down in a front yard, don ' t you?
12 CHAIRMAN DINIZIO: You ' re supposed to step
down your side which is 88 feet away from where
13 they ' re proposing to put this fence .
Anybody else have any questions? I have . I
14 walk by this house everyday. I went to school in
that house . I lived in Greenport all my life . Two,
15 lots down, Dr . Levin ' s house, had a six foot fence
to the corner and the Village made them return
16 that back. Their law is a little different than
ours . You ' re asking us to go from where you ' re
17 allowed to go which is 88 feet back from the Main
Road to right on the Main Road. Everyday I walk
18 that sidewalk, everyday. I can tell you that the
bushes and those trees are a problem. Trying to
19 walk on that sidewalk.
MS . REEVE : I agree .
20 CHAIRMAN DINIZIO: They did raise it up a
little . I don ' t think they raised it a foot but I
21 think they did raise it up just because the road
was raised up and they put nice curving in there .
22 I gotta say, I don ' t think that you can put it
right on the property line . If you want to go
23 back 20 or 30 feet and have a 6 foot fence, I got
no problem with that .
24 MS . REEVE : We can ' t do that because the
trees are too close .
25 CHAIRMAN DINIZIO : Then go behind the trees .
I 'm not objecting to that . My objection is that
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 you want to put this right on the sidewalk.
MS . REEVE : No, I just want to put it where
3 the current fence is .
CHAIRMAN DINIZIO: Right, which is four foot .
4 Which is perfectly legal for you to have . You ' re
asking us now to double the size to 50% more of
5 that fence which is two feet more than it is
already. We have certain standards that we would
6 like to impose . One is that it be a four foot
fence and if you want a variance for that, you
7 have to come before us . And you ' re asking us to
put something that should be 88 feet away --
8 MS . REEVE : I 'm not following. Eighty-eight
feet away from what?
9 CHAIRMAN DINIZIO: Your side yard. If you
wanted to put a six foot fence in your side yard
10 --
MS . REEVE : We ' re talking about the side yard
11 not the front --
CHAIRMAN DINIZIO: To the corner of your
12 house from the front yard .
MS . REEVE : Are we talking about the side
13 yard or t-he front --
CHAIRMAN DINIZIO: What I 'm saying to you
14 ma ' am is, you can ' t have a six foot fence in your
front yard. Your front yard is 88 feet back from
15 the road.
BOARD MEMBER WEISMAN : She knows that . She ' s
16 going for a variance .
CHAIRMAN DINIZIO: Right and I 'm explaining
17 to her the reason why I think she should move it
back or that she ' s asking for entirely too much . I
18 would be willing to compromise to the point where
it ' s away from the street . She wants privacy, I
19 buy that . I buy the privacy thing because it is on
the Main Road. I just don ' t buy it right on the
20 property line . Now, I understand there are some
hardships but she can work around those hardships .
21 Those trees are beautiful . I know they are very
nice but there ' s certainly a way she can build a
22 fence, have the privacy and still be away from the
road.
23 MS . REEVE : So you ' re saying leave that fence
there and build a second fence back?
24 CHAIRMAN DINIZIO: I wish that you would
continue to cut that stuff back. It ' s very
25 difficult to walk on your part --
MS . REEVE : Part of my problem is, I 'm at
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 home with two kids and I have a husband that ' s in
the city five days a week and I have to pay
3 someone to come and do this all the time . It ' s a
nightmare of landscape work constantly.
4 CHAIRMAN DINIZIO: You want to keep it, you
got to keep it so that it ' s not interfering with
5 the public. It ' s a public sidewalk.
BOARD MEMBER GOEHRINGER: Can we make a
6 suggestion to this nice lady and ask her to
possibly compromise and speak to somebody else and
7 see if you can set it back a little bit farther?.
MS . REEVE : Yeah . I actually don ' t think it ' s
8 possible . So, if it doesn ' t look like I 'm going to
get it, then I ' ll just leave what ' s there, there I
9 gue,ss . Maureen told me that she didn ' t think it
would be an issue at all because it ' s not as
10 though it ' s in a historic part of town and it ' s
not as though, even driving by you can still see
11 the house . It ' s an enormous house . It ' s simply
having the privacy in the front yard. If we set it
12 back, then I 'm going to have the problem with
vagrants . Which is what we had when we first moved
13 there . People coming in and sleeping in our yard.
So they ' ll be sleeping now between the sidewalk
14 and our yard. It ' s just unfortunate .
BOARD MEMBER WEISMAN : Can you address that a
15 little more? The application suggested that
you ' re original concern was a sound barrier, it ' s
16 traffic .
MS . REEVE : And privacy. I mean, I ' ll show
17 you the letter I sent to the neighbors .
BOARD MEMBER WEISMAN : But the application
18 didn ' t address the privacy issue so much as it did
the sound barrier issue . It was a very brief
19 application .
MS . REEVE : I 'm sorry. Maureen did the
20 application for us .
BOARD MEMBER WEISMAN: It ' s pretty brief. So
21 if you ' re having security problems in your mind,
can you just make sure for the record that we ' re
22 clear about what goes , why you ' re concerned, why
you feel that a higher fence would be advantageous
23 to you in terms of your security and privacy.
MS . REEVE : Quite honestly, I thought about
24 well, the fence . I could also have a gate in the
front property so people aren ' t wandering in which
25 people do quite a, bit . People are standing there
waiting for the bus . They ' ll stand in our
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 driveway. They ' ll leave their food in our
driveway. They ' ll leave all kinds of junk around .
3 So, I thought no, if I put a gate there, then
people will know when we ' re not there and I ' ll
4 have an even harder problem keeping people out of
the property. So I just assumed if I have a
5 higher fence, then people who are walking by would
not be looking into the property and watching my
6 kids play in there . That ' s all . It ' s a simple
issue . To me, it was a simple issue and I ' m not
7 trying to do anything ugly. I 'm trying to put
something nice there that will --
8 BOARD MEMBER GOEHRINGER: Can I just mention
one thing to you. I ' ve had some experience with
9 these things . You can setback a fence and since
you ' re putting a wooden fence up, it ' s much
10 easier . You can use steel posts as opposed to
wood posts which take up much less room and can be
11 worked in between rooting systems of trees, okay.
That ' s very simple to do . So instead of using a
12 huge post hole digger to go down and put wood
posts, they use inch posts or inch and a quarter
13 posts or inch and a half posts depending upon what
type of post and what thickness of the post that
14 they use . I honestly feel, as I sit before you,
that you can set this fence back farther from the
15 property line than you ' re anticipating at this
time and create the same situation that you ' re
16 trying to create . If you leave that grown over in
front, better yet, snip it as the Chairman as
17 said, so people can walk by, nobody is going to be
able to get over that fence because it ' s so grown
18 over in there . You ' re going to have a double
situation. You ' re going to have the fence that
19 exists plus you ' ll have the fence that you set
back. But you need to speak to someone that can do
20 that .
MS . REEVE : Right and have the space in
21 between that anyone can jump in and do whatever .
BOARD MEMBER GOEHRINGER: I 'm not talking
22 about a great space . It depends upon us and how
we can deal with the whole situation . I ' d like to
23 go back and look at it again, to be honest with
you .
24 MS . REEVE : You ' re welcome to come over any
time . I ' ll talk to Maureen and see if there ' s any
25 other way we can do it .
BOARD MEMBER GOEHRINGER: That metal post
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 though is not going to disrupt the rooting system
of those trees . The hole that has to be dug is
3 not a huge hole which would normally do with a 4x4
post and then set it in cement and blah blah
4 blah . That ' s just my opinion.
MS . REEVE : And then you can still put a
5 wooden fence on a metal post like that?
BOARD MEMBER GOEHRINGER: Yes, they put
6 U-brackets on them.
MS . REEVE : Well I ' ll talk to the fence
7 company and see if that ' s possible . I ' ll talk to
Maureen and see if there ' s some other way we can
8 put it across .
BOARD ASSISTANT KOWALSKI : Do want to do
9 that, I ' ll close the hearing subject to additional
10 CHAIRMAN DINIZIO: That ' s up to her . She
might want to testify again .
11 BOARD ASSISTANT KOWALSKI : Do you want to
keep the hearing open?
12 CHAIRMAN DINIZIO: Keep the hearing open .
BOARD ASSISTANT KOWALSKI : Do you want to
13 adjourn it and come back in a month or do you want
to do it in writing?
14 MS . REEVE : I don ' t know. I ' ve never done
this before .
15 BOARD MEMBER GOEHRINGER: I think you should
come back after you speak to somebody and talk
16 about the distance .
BOARD MEMBER WEISMAN : Investigate some more,
17 see what other options you have .
BOARD MEMBER GOEHRINGER: The advantage is,
18 you have so much ground cover in front that you
will not even see that secondary fence . It will
19 still give you the privacy you need to afford and
the sound barrier situation that you ' re looking
20 for .
MS . REEVE : I don ' t think it ' ll look very
21 nice actually. I mean it ' ll get grown over too, I
suppose .
22 BOARD ASSISTANT KOWALSKI : We would adjourn
this to August 2nd . It would be in the morning
23 approximately 9 : 45 .
CHAIRMAN DINIZIO: I ' ll entertain a motion .
24 (See minutes for resolution . )
25 CHAIRMAN DINIZIO: I ' ll entertain a motion
for a fifteen minute break..
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2 (Whereupon a short recess was taken at 2 : 30
p .m. )
3 (Back on the record at 2 : 55 p .m. )
****************************************
4 CHAIRMAN DINIZIO: Okay. We ' re going to
reconvene . I need a motion .
5 (See minutes for resolution . )
6 Hearing #6045 - Gross .
CHAIRMAN DINIZIO : Our next hearing is for
7 Amy Gross . Michael, that ' s yours .
BOARD MEMBER SIMON : Okay. "Request for
8 Variances under Sections 280-15F and 280-116A,
based on the Building Inspector ' s April 16, 2007
9 Notice of Disapproval concerning an application
for a building permit concerning proposed addition
10 to a single-family dwelling, pergola and swimming
pool . The reasons for disapproving the building
11 permit application are that the addition to the
existing dwelling will be less than 100 feet from
12 the top of the bluff or bank adjacent to the Long
Island Sound; (2 ) the proposed addition places the
13 existing accessory garage partly in a side yard;
and (3 ) that the proposed swimming pool
14 construction and pergola will be less than the
code-required 50 feet from the front lot line when
15 located in a front yard. Location of Property: 740
Northview Drive, Orient ; CTM 13-1-4 . "
16 I guess Mr. Ryall?
MR. RYALL : Yes . I 'm Bill Ryall with Ryall
17 Porter Architects . I 'm Amy Gross ' architect . I
also live in the same neighborhood as she does . We
18 received two letters a few days ago, one from
Thomas McMann from the Soil and Water Conservation
19 District . The other was from Mr . Terry. We gave
you a letter in reply to that because I think each
20 of them may have misunderstood a couple of things
about the application .
21 BOARD ASSISTANT KOWALSKI : We ' re just giving
it out now .
22 MR. RYALL : Would you like for me to read
through that and see if that ' s an issue or I can
23 just describe the project to you then answer any
questions .
24 CHAIRMAN DINIZIO: However you would like to
handle that .
25 MR. RYALL : I ' ll do that . So, the existing,
as you know, this is on the property is on Long
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2 Island Sound, and there ' s an existing house, a
very small house, really kind of more like a
3 cottage than a house probably 1200 square feet
existing. Amy would like to add onto it so that
4 she can have a master bedroom and a screen porch
and a utility room. There ' s no basement and
5 there ' s not going to be a basement . If you look at
the survey that was prepared by Joe Ingegno
6 (phonetic) , the addition that we ' ve made moves
away from the bluff towards the Northview Drive,
7 the front of the house . We ' ve also located new
dry wells throughout so that we can collect all of
8 the roof runoff from both existing and the new
structure . There ' s one and then we ' re proposing a
9 swimming pool which we put in the front yard
because it ' s a very flat, large flat area in the
10 front . But also, I ' d like to actually ask your
opinion about this . I had assumed that you want
11 these pools always to be in the front and as far
away as possible from the bluff in bluff
12 situations . That ' s what we did. So, there were --
in my letter raises a couple of issues that were
13 in Mr. McMann ' s letter . He stated that we were
making a permeable surface for the driveway.
14 We ' re not . We would just be reconfiguring the
gravel driveway so it would be a permeable not an
15 impermeable surface . He also mentioned ,something
about controlling, I think, silt runoff during
16 construction. Of course, we would do the hay bales
along the back of the house so that there would be
17 no runoff, nothing at all would be affecting the
bluff by doing this work. One of the -- in our
18 proposal we added a master bedroom but also the
screen porch down below so it ' s a two-story
19 structure although it ' s not very tall . The top of
the peak of the second story is 21 feet 7 . When
20 we add up all of the things that we ' re doing, the
addition, the pool and even the random stone set
21 in sand around the pool paving . So again it ' s a
permeable surface there . We ' re just below -- the
22 new rule about the. 20o built area, not 200 of the
entire lot but 200 of the buildable area . In other
23 words, we ' re excluding all the bluff from the top
of bluff line which was flagged by Glen Just
24 (phonetic) of JMO .
CHAIRMAN DINIZIO : Michael?
25 BOARD MEMBER SIMON : My first question is,
you say that we certainly that we do favor the
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2 pool being farther away from the bluff rather than
closer to it but one of. the grounds of disapproval
3 was that it was so far from the bluff that it was
only 15 feet from the drive . Are there reasons
4 why it has to be that close to Northview Drive?
MR. RYALL : No . It ' s 18 -- the letter does
5 say 15 but the survey shows 18 . No, it actually
could be farther away from the drive . You can sort
6 of imagine looking at our plan that we have some
leeway there . We had pushed it back as far as
7 possible .
BOARD MEMBER SIMON : My other question
8 concerns the distance from the bluff . The five
feet from the bluff is from the slate and gravel
9 patio .
MR. RYALL : Yes . It should say on the survey
10 that that ' s existing, which it is .
BOARD MEMBER SIMON : Nothing is going to be
11 done to that?
MR. RYALL : Nothing . We won ' t touch that back
12 there at all, no .
BOARD MEMBER SIMON : So all the new
13 construction is going to be in the proposed
addition which is landward of the house and the
14 garage and the pool and the pergola?
MR. RYALL : That ' s correct . You ' ll see that
15 there ' s, on the agenda that was written up, the
second point, number two, says that by putting the
16 addition on the front , inadvertently we ' ve ended
up putting the existing garage into creating
17 partly a side yard in which --
BOARD MEMBER SIMON : I 'm not going to raise a
18 question about that because I think the rule --
first of all, the backyard rule for garages, as
19 far as I can see, goes back only to the days when
barns used to be behind houses for horses and then
20 they turned them into garages . It ' s especially
strange when this means putting it close to the
21 road because you ' re waterfront property. So there
may be a question here . I 'm not going to raise it .
22 MR. RYALL : I can ' t imagine that it ' s a
problem. You wouldn ' t want to move the garage .
23 That ' d be crazy to do that .
BOARD MEMBER SIMON : That ' s all I have .
24 CHAIRMAN DINIZIO : Ruth?
BOARD MEMBER OLIVA: I ' ve looked at it and I
25 think from your testimony here that you ' ve covered
all the points that I was interested in. It looks
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 like a good project .
CHAIRMAN DINIZIO: Leslie?
3 BOARD MEMBER WEISMAN : I think all the
drawings are clear . What you really need is a
4 variance for the pergola and pool from the road
and setback and you need because this accessory
5 garage now winds up partially in the side yard, we
simply have to say that ' s okay, basically. I think
6 it ' s a very modest addition . It clearly is an
addition to an existing house . Nothing is being
7 demolished. Nothing is being added. The only loss
here is some beautiful landscaping which I assume
8 they ' re going to replace because it ' s so nicely
landscaped, I can ' t imagine them not wanting to
9 continue to create privacy. There is one dry well
that ' s maybe a little bit close to the bluff line
10 and perhaps you might want to -- would you
reconsider scooting that back a little bit?
11 MR. RYALL : We could push it right up against
the addition, it ' s be fine .
12 BOARD MEMBER WEISMAN : Even though -- what is
it four foot?
13 MR. RYALL : They ' re eight foot diameter, four
feet deep . In one of the letters you just
14 received, it asked why did we put the dry wells on
the front side of the house? The reason is that
15 the roof on the existing house is draining in the
direction of the bluff . So it makes more sense to
16 catch it right there and right by the down spout .
But I ' d be happy to move that dry well closer .
17 BOARD MEMBER WEISMAN : If that can go back
into the corner a little bit . You ' ll accomplish
18 the same thing and you just wont ' be that close .
MR. RYALL : Also, I didn ' t say it but the
19 pool would be gunite . I can ' t imagine there would
ever be any reason to drain the whole pool . That
20 was another point that Mr . Terry made, I think. Of
course, we can ' t have a dry well the size of the
21 pool but we ' re not going to be draining that pool
anyway.
22 BOARD MEMBER WEISMAN : You are proposing a
dry well for pool backwash anyway?
23 MR. RYALL : Absolutely, there ' s a diameter
for backwash and that ' s as much that is ever
24 going to come out of there . But I did want to ask
this question just because Amy Gross had asked me
25 to ask you guys . How do you feel about pools on
the side? Supposing the garage hadn ' t been there,
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 it ' s actually a rather beautiful place to have a
pool over there on the side . You ' d be quite close
3 to the bluff and you ' d see the water more clearly
from the pool . But I really didn ' t think you ' d
4 allow pools on the side yard if there were ever a
way to put it in the front yard. We do have plenty
5 of flat area in the front .
CHAIRMAN DINIZIO: You ' d have to ask for a
6 variance for that .
MR. RYALL : Of course, we ' d ask for a
7 different variance .
BOARD MEMBER OLIVA: I think you should leave
8 while you ' re ahead.
MR. RYALL : Okay. I ' ll pass that on.
9 BOARD MEMBER SIMON : We ' ve had a number of
people who propose putting their swimming pools
10 between their house and the bluff because they
want to watch the Sound and those are ones that we
11 have problems with for reasons having to do with
the preservation of the bluff rather than some
12 rule about where the pool ought to be .
MR. RYALL : I see, okay. Thanks .
13 CHAIRMAN DINIZIO: Hold on just a second.
BOARD ASSISTANT KOWALSKI : There ' s just three
14 cards , three green signature cards we were waiting
for from you. If you can mail them to us .
15 MR. RYALL : Oh. And you didn ' t get them all
yet?
16 BOARD ASSISTANT KOWALSKI : No .
MR. RYALL : Which one are you missing?
17 BOARD ASSISTANT KOWALSKI : All three of them.
When you can, next week.
18 MR. RYALL : Okay. I ' ll do that, thanks .
CHAIRMAN DINIZIO: Anybody else from the
19 audience, any questions from the audience?
BOARD ASSISTANT KOWALSKI : There ' s somebody
20 in the back.
CHAIRMAN DINIZIO: Sure . Talk up to the
21 microphone sir .
MR. WINTER: Good afternoon, Members of the
22 Board, Chairman. My name is John Winter, an
immediate neighbor of Amy. We did sign the green
23 card. We did receive it . I just wanted to mention
that .
24 BOARD ASSISTANT KOWALSKI : You did, okay.
Thank you for telling us .
25 CHAIRMAN DINIZIO : Thank you . Anybody else
wish to speak for or against this application?
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 Okay. I ' ll entertain a motion that we close this
hearing until July 12th .
3 (See minutes for resolution . )
*************************************
4 Hearing #6040 - Sachman
CHAIRMAN DINIZIO : Our next hearing is Steve
5 Sachman . This is Gerry ' s, so I ' ll read the notice .
"Request for Variances under Section 280-15,
6 based on an for a building permit and the Building
Inspector ' s April 9, 2007 Notice of Disapproval
7 for an accessory garaged proposed : ( 1) at less than
15 feet from the side lot line, (2 ) at a size
8 exceeding the code limitation of 750 square feet,
and (3 ) with dormers exceeding the code limitation
9 of 40% of the roof width . Location of Property :
4705 Nassau Point Road, Cutchogue; CTM 111-9-9 . "
10 I have no questions at this time but I
reserve the right to ask them later . Sir, state
11 your name please and your address .
MR. NEMSCHICK: Sure . I 'm Ray Nemschick. I 'm
12 the architect for the Sachmans , representing them.
We ' re at 735 Deerfoot Path, Cutchogue .
13 CHAIRMAN DINIZIO : What do you have to say?
MR. NEMSCHICK: There ' s a couple of things .
14 First off, the Sachmans have an existing garage
that ' s six and a half feet to the lot line . We ' re
15 not looking to encroach any further then the
existing garage . But what it is is that we ' re
16 looking to increase the existing garage . Right now
the structure is not exactly what they would want
17 to put an addition or to increase the size of the
garage which is what we ' re trying to do by three
18 feet on width and three feet in length . But the
issue then becomes from the side yard setback. I
19 want to note that we ' re on a walking right of way.
We ' re not abutting another lot . The other thing
20 is -- so that ' s one of the variances as far as
that goes, the setback requirements . The square
21 footage requirements I wanted to not that the
square footage for the garage is 750 square feet
22 but because there ' s a balcony from that unheated
storage, that kicks us over to 750 square feet . So
23 I think it ' s important to note that really what
they ' re going for square footage wise is an
24 exception to the balcony, not to the garage . We ' d
be amendable, if we had to, to reduce to get under
25 the 750 square feet and the other thing is that
the front porch or not porch, the patio in the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 front is at grade . So it doesn ' t count under the
definition of floor area . So it wouldn ' t be an
3 increase in the square footage requirement . So
really all we ' re talking about is the square
4 footage of the balcony, not what ' s below it . The
code does allow for -- the Southold Town Zoning
5 code, does allow for six foot by five foot porch
extension into a setback that doesn ' t come under
6 floor area . So I ' d be amendable to reducing that
to accommodate the six foot by five foot rule
7 instead of what it is now if we don ' t get the
variance . The other thing is that -- and this is
8 the more peculiar one, the last one that we ' re up
for is the dormer rule . There ' s no dormers on the
9 garage . Those are the exterior wall and the roof .
The roof is at 3 on 12 pitch . Southold Town Zoning
10 Code does allow for the height that I 'm under, 20
foot, at a 3 on 12 pitch to the ridge now with the
11 new accessory codes . So I 'm not really
understanding why we ' ve been denied for dormers . I
12 brought it up to the Building Department and they
kind of agree with me but they don ' t want -- they
13 want you guys to say that you don ' t need or it ' s
not a dormer .
14 BOARD MEMBER SIMON : We have a copy of the
code here . How does the code define dormer?
15 MR. NEMSCHICK: It doesn ' t . A dormer is
defined as a secondary roof structure that ' s laced
16 into a primary roof structure . Meaning that you
would have to, in order to produce a dormer onto
17 an existing roof, you would have to remove some of
the rafters, put in a header and then create a
18 dormer off of that roof. This actually, if you
look at the cross section of the building when
19 you ' re looking at the plans, you can see that we
have an exterior wall in a 3 on 12 pitch and the
20 actual 12 on 12 pitch to match the house with
nothing but fliers that come off the front of the
21 house . It ' s a aesthetic move to tie it more into
the house . It ' s not really, so it ' s a skirt but
22 it ' s not the primary roof structure .
CHAIRMAN DINIZIO : Leslie, do you have
23 something to ask?
BOARD MEMBER WEISMAN : The code does not
24 describe dormer and as an architect to an
architect, we understand structurally what a
25 dormer is supposed to be . But in terms of visual
impact, they way this is looking, the average
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 individual would assume this is a dormer . What it
is is a second floor that has an awful lot of
3 windows , two rooms, full clearance, finished
ceiling and it ' s noted as unheated storage . Why
4 does unheated storage need two rooms, one roof and
all those windows and a finished ceiling and an
5 exterior door that goes out to a balcony?
MR. NEMSCHICK: You ' d have to ask them. They
6 just asked me that that ' s what the requirements
were for the structure .
7 BOARD MEMBER SIMON : This raises lots of
questions .
8 MR. NEMSCHICK: I ' d ask why that comes under
your questioning?
9 BOARD MEMBER WEISMAN : Because it ' s
potentially habitable space .
10 MR. NEMSCHICK: But it ' s potentially
habitable space . Doesn ' t mean that it is habitable
11 space .
BOARD MEMBER WEISMAN : The reason that the
12 code was rewritten was to create accessory
structures that were somewhat in scale and
13 proportion to the existing principal and the size
of the property.
14 BOARD MEMBER SIMON : And by special
permission .
15 BOARD MEMBER WEISMAN : I don ' t have a
problem with the setback because you described
16 very accurately the woody sort of footpath
basically that is already sitting there . The
17 existing garage . What we ' re trying to do is get
this in as close to compliance with the new law as
18 possible . So if you ' re amendable to reducing or
eliminating that overhead porch and balcony, which
19 is the extra 100 square foot, then you ' re within
compliance, your 750 square feet right there .
20 That ' s one issue . The setback is the preexisting
structure there and it has no visual impact on
21 anyone . It ' s bamboo screening on both sides and
it ' s simply a footpath . It ' s a paper road. So
22 that setback is not problematic to me . It ' s a
very big structure . I think the issue is probably
23 the amount of glazing with all those windows and
lights up there that the Building Department
24 noticed as dormers . Dormer law now requires no
more than 400 of the width of the roof.
25 MR. NEMSCHICK: It always has . The 400
dormer . But what I 'm asking is for clarification
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 -- the windows, I don ' t think there ' s any part in
the zoning code that describes that I can ' t put as
3 many windows on an accessory structure as I want .
BOARD MEMBER SIMON: Not explicitly but the
4 house I had before was renovated, had what we
always called double dormers . I guess you would
5 not call them double dormers, you would call them
second floor structures . But in any case, that is
6 a secondary issue . To me the primary issue has to
do with this habitable space . The code may not
7 specifically count windows but they do count
things like dwelling spaces . It ' s pretty clear
8 that you cannot have two dwelling units on the
same property. Whatever you call it, you cannot
9 get permission for a second dwelling unit . And if
something looks like a dwelling unit and sounds
10 like a dwelling unit and acts like a dwelling
unit, if you will, one wonders what the zoning
11 board is supposed to do about this . Are we just
supposed to simply say we cannot find any explicit
12 language which says we cannot support this
disapproval because we cannot find the specific
13 code and verse in the code . I think with a little
one could do so but I don ' t really want to go that
14 route . It looks to me like there ' s a dwelling
being built there and we ' re being asked to approve
15 it . We ' re not .
MR. NEMSCHICK: That ' s not exactly true .
16 You ' re not being asked to approve a dwelling unit .
The truth of the matter is, we haven ' t been denied
17 for that reason . I would ask the Board that they
not even entertain that .
18 BOARD MEMBER SIMON : We ' re asked, mistakenly
asked by the Building Department, a
19 misinterpretation about what a dormer is . We ' re
given the opportunity to look at the floor plans
20 and elevations of this structure . We find
something that wasn ' t specifically drawn to our
21 attention but it looks like the kinds of things
that people have been trying to do all over this
22 Town, ever since I ' ve been here and long before,
putting in dwelling units over the garage and
23 we ' ve turned down a lot of places and the Building
Department has turned them down . We ' ve supported
24 them because they look pretty much like they ' re
secondary dwelling units which are not recognized
25 by the code . So I don ' t think we have a whole lot
of choice .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MR. NEMSCHICK: You haven ' t approved any
secondary dwelling units?
3 BOARD MEMBER SIMON : Not as secondary
dwellings . We don ' t have the authority.
4 MR. NEMSCHICK: Accessory apartments . Let ' s
put it that way. Have you approved accessory
5 apartments?
BOARD MEMBER SIMON : They have to be within
6 the principal dwelling .
MR. NEMSCHICK: Understood but have you ever
7 approved any detached accessory apartments?
BOARD MEMBER SIMON : No, we can ' t .
8 CHAIRMAN DINIZIO: You ' re not asking us that .
MR. NEMSCHICK: That ' s what I 'm getting at .
9 I 'm trying to prove the point that I 'm not asking
you for that .
10 BOARD MEMBER SIMON : You ' re not asking for it
but if your client were doing something and did it
11 and it was contrary to the spirit and letter of
the code and you never asked for it, that wouldn ' t
12 be much of an excuse, we never asked for it, we
just did it . Looks to me this is what they ' re
13 doing or trying to do .
BOARD MEMBER WEISMAN : Your client never said
14 to you we want two spaces above the garage that we
can use with a guest room with storage?
15 MR. NEMSCHICK: No .
BOARD MEMBER WEISMAN : You can understand and
16 I 'm not suggesting you know the answer to this,
your client told you what they wanted and you as
17 the architect did it . But what we ' re suggesting
is when you see finished ceiling in a garage,
18 that ' s called out as storage and there ' s lots and
lots of windows in what would be a loft space, one
19 would then wonder why would you go to that
expense? For boxes? Do boxes need all that night?
20 Is it an aesthetic decision?
MR. NEMSCHICK: Sure . For them it ' s an
21 aesthetic decision and they have the money to
build it . I ' d never ask the question to say I
22 don ' t want you to put drywall on the rafters .
BOARD MEMBER SIMON : I understand. That is
23 not what you ' re expected to deal with . You can
understand that we have to cast our net a little
24 bit more broadly than you .
MR. NEMSCHICK: I feel for you actually.
25 BOARD MEMBER SIMON : We ' re not blaming you
for not saying to your clients, hey are you sure
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 you know what you ' re doing .
MR. NEMSCHICK: I ' m not thinking that . I
3 don ' t have any feelings anyway so I 'm not taking
it that way.
4 BOARD MEMBER WEISMAN : I just have one more
question actually. Do you have any idea, there ' s
5 a proposed lap pool also adjacent which doesn ' t
need a variance . Do you know if there ' s any intent
6 to use upstairs above the car part in conjunction
with the pool? That porch or anything like that?
7 MR. NEMSCHICK: As storage, I think that ' s
what they ' re looking for . I mean they have small
8 kids so I would imagine that ' s why they wanted the
balcony so if they ' re up there messing around with
9 their storage, that they can see the kids in the
pool . Like I said, I 'm not trying to get one by
10 anybody. I 'm just operating under what the zoning
codes let me do as an architect . The reality of it
11 is is that I don ' t see these as dormers . I ' d like
for somebody to tell me how they ' re dormers so
12 that I can better explain to the client why they
would be denied, if they were to be denied.
13 CHAIRMAN DINIZIO: Certainly you have a
person here that wrote that law. Maybe you can
14 give them a little advice, Leslie?
BOARD MEMBER WEISMAN : I believe the Building
15 Department noticed it that way, if you look at the
elevation, even though this is a story that ' s
16 coming up from this and the pitch is 3 on 12 and 9
on 12 here . Because this projects out from the
17 ridge and has a wall coming down even though if it
started here, it would be clearly a dormer . I
18 think they wrote it that way because of what it
looks like . Structurally, it would have to come
19 into the roof structure here rather than hit the
ridge .
20 MR. NEMSCHICK: If it were a dormer, correct .
BOARD MEMBER WEISMAN : I think because it
21 looks like a dormer, they wrote it as a dormer .
Again, the code doesn ' t define -- dormer in
22 architectural terms is a structural form, a roof
form. It ' s not -- they ' re looking at it in terms
23 of windows within a roof, the element that ' s
popping out .of the roof, sitting on top .
24 MR. NEMSCHICK: So if I remove the fliers
then, it ' s not a dormer? What I 'm getting at is
25 the fliers are the two 9 on 12 pitch. If we take
those off, then we comply with --
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO: That ' s just an
architectural thing . There ' s no use to that .
3 MR. NEMSCHICK: The use is to try and lesson
the second story. Whatever it is, there ' s use to
4 it .
CHAIRMAN DINIZIO : They ' re underneath the
5 house . You ' re just dressing up the house a little
bit .
6 MR. NEMSCHICK: Right to make it look like
the primary structure so that it doesn ' t look so
7 out of place as an accessory structure . I 'm trying
to be sensitive to it .
8 CHAIRMAN DINIZIO: That dormer, so to speak,
is the entire roof line of the top of the second
9 floor .
MR. NEMSCHICK: But it ' s not a dormer, that ' s
10 what I ' m trying to say.
CHAIRMAN DINIZIO: That ' s why I said so to
11 speak.
BOARD MEMBER SIMON : How tall is it? We
12 haven ' t seen the inside? Is there room to stand
up?
13 MR. NEMSCHICK: Sure, look at the section.
There ' s a sectional drawing in there .
14 BOARD MEMBER WEISMAN : You know what , it ' s a
second roof basically with a wall that extends
15 beyond.
BOARD MEMBER SIMON : So it ' s a second story?
16 MR. NEMSCHICK: Well, it ' s a story and a
half . We ' re underneath the roof so it ' s defined
17 as a story and a half .
BOARD MEMBER SIMON : I believe it ' s a story
18 and a half if it ' s less than 50% floor area,
habitable floor area .
19 MR. NEMSCHICK: Under 7 foot 6, correct .
BOARD MEMBER SIMON : Under 7 foot 6, it ' s 500
20 of that area or more is habitable, then it ' s a
second story. Otherwise, it ' s part of the house .
21 MR. NEMSCHICK: But it ' s not habitable . I
think we ' re arguing semantics . I 'm trying.
22 BOARD MEMBER WEISMAN : He ' s not proposing it
as habitable space . It ' s proposed as unheated
23 storage .
CHAIRMAN DINIZIO: He wasn ' t turned down for
24 that either.
BOARD MEMBER WEISMAN : He wasn ' t turned down
25 for that . It was just because of the amount of
glazing and what is written up as a dormer and
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 front yard setback technically from the little
right of way .
3 MR. NEMSCHICK: It ' s not a front yard though
because it ' s not considered a corner lot .
4 BOARD MEMBER WEISMAN : I know that . And the
square footage, that ' s it .
5 CHAIRMAN DINIZIO: Ruth, do you have anything
to add?
6 BOARD MEMBER OLIVA: I think Michael and
Leslie have covered the idea of the dormers and
7 square footage and maybe some habitable space
question mark.
8 BOARD MEMBER WEISMAN : Not his fault .
CHAIRMAN DINIZIO: Quite honestly, I would
9 caution the Board for making any assumption in
this regard. I think we have to take the facts as
10 they are and take them from there . I can say the
reason why this is in the location that it ' s in is
11 because it had a variance way back when and I 'm a
little concerned about that, the 7 foot .
12 MR. NEMSCHICK: It wouldn ' t have needed a
variance way back when, even last year. This
13 wouldn ' t have needed a variance last year.
CHAIRMAN DINIZIO: I mean the reason why it
14 is where it was is because it had a variance
before we said you could have in a front yard an
15 accessory structure .
MR. NEMSCHICK: Now it ' s a nonconforming .
16 CHAIRMAN DINIZIO: I 'm just going over --
looks to me like this application is riddled with
17 applications to the zoning board. There ' s another
one . Here ' s another variance . That ' s not anything
18 to do with this . Looks like your in-ground pool
was granted which probably you wouldn ' t need now
19 either . I 'm going to take you at your word for it,
sir, that this is not going to be an apartment .
20 MR. NEMSCHICK: Take the client at their
word, not at my.
21 CHAIRMAN DINIZIO : That ' s what I mean . I 'm
reading the record. It looks like you asked for
22 what you got denied for . The dormer part of it is
a law that is not clear, quite honestly. Until we
23 try to peel it every month, trying to deal with
unclear laws and this one in particular is riddled
24 with problems . That ' s my opinion . I ' ll go no
further with that if you ' ll go no further with
25 that . I think that if you could maybe do without
the balcony. The only thing that throws a flag
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 up, I think is 750 square feet . That ' s a
dwelling. That ' s the law. A legal dwelling is 750
3 square feet .
MR. NEMSCHICK: 850 square feet is a legal
4 dwelling .
CHAIRMAN DINIZIO : It ' s only 800 feet . I can
5 understand some confusion on that part . I ' ll state
what I say is that you applied for something, you
6 are responsible to live by the code and obviously,
you have . I don ' t know whether I have a problem
7 with this or not . I haven ' t really heard too much
about . We spoke mostly about the dormer which is
8 something that I 'm not concerned about . It seems
like the only thing that really throws you off
9 here is that balcony. If you can do something with
that, maybe we can make --
10 MR. NEMSCHICK: Okay. We ' ll take it off . I
think the setback is what the main, I never even
11 assumed to get denied and it was my fault for
putting a balcony on and not realizing that I
12 counted under . That ' s something that I can reduce
the square footage . I ' ve already told the
13 Building Department that but they said, leave it
like this so they can hear it .
14 BOARD MEMBER WEISMAN : We can look at all of
it at once .
15 MR. NEMSCHICK: The dormer law, that ' s
something I think is clear in my head but
16 something that had to be discussed.
CHAIRMAN DINIZIO: You ' ve probably looked at
17 the code more than I have . The pitch of the roof
-- the dormer is a roof pitch, normal every day
18 roof pitch. Not like it ' s a flat roof .
MR. NEMSCHICK: Yeah and it ' s under the
19 height requirement . For my own, I wanted to
understand because there ' s clients that ask for
20 this so I need to tell them what I think they can
have in the Southold Town zoning and what the
21 Building Department will approve .
CHAIRMAN DINIZIO: Without a need for a
22 variance .
MR. NEMSCHICK: I ' d be amendable to reducing
23 some of the look of the windows . If you want, I
can cut it in two and try and create a little bit .
24 I don ' t think they ' ll have a problem with that
either . I think what we really went for is the
25 setback, was what I was assuming I was going to
get denied for because I knew that was a direct
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2 violation .
BOARD MEMBER SIMON : Question. As I see the
3 plans, the balcony is not -- there ' s no way of
getting onto the balcony.
4 MR. NEMSCHICK: Sure there is .
BOARD MEMBER SIMON : How?
5 MR. NEMSCHICK: The door .
BOARD MEMBER WEISMAN: Right on the second
6 floor door .
BOARD MEMBER SIMON : Okay and this is
7 presumably in case the storage material wants to
get out onto the balcony, is that the idea?
8 MR. NEMSCHICK: From their point, they have
small children and if they ' re in the pool, they
9 want to be able to walk out and see them.
BOARD MEMBER SIMON : From the storage area?
10 MR. NEMSCHICK: Correct .
BOARD MEMBER WEISMAN : They can do that with
11 a window.
MR. NEMSCHICK: Yes , exactly. They ' ll be fine
12 with that . If I take off that, then they won ' t
have the limitation site line wise to even see it .
13 CHAIRMAN DINIZIO: Okay.
BOARD ASSISTANT KOWALSKI : How many square
14 feet would that be?
MR. NEMSCHICK: It ' d be 750 square feet when
15 I reduce it .
BOARD ASSISTANT KOWALSKI : Bring it right
16 down .
BOARD MEMBER WEISMAN : We ' re going to try and
17 just make it as conforming as possible .
CHAIRMAN DINIZIO: Any other questions that
18 the Board would like to ask of this applicant? Do
you have anything that you would like to add to
19 this?
MR. NEMSCHICK: Nothing, thank you .
20 CHAIRMAN DINIZIO : Hearing none, I ' ll
entertain a motion to close this hearing. Oh yes,
21 anybody in the audience that would like to speak
for or against? Hearing none, I ' ll entertain a
22 motion to close this hearing until the 12th .
(See minutes for resolution . )
23
Hearing #6049 - Retus
24 BOARD MEMBER SIMON : It ' s mine . Brian Retus .
"Request for Variances under Sections
25 280-116A ( 1) and 280-124 , based on the Building
Inspector ' s May 14 , 2007 Notice of Disapproval
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1 ZONING BOARD OF APPEALS JUNE 28 , 2007
2 concerning : ( 1) proposed additions with alterations
to the existing dwelling proposed at less than 100
3 feet from the top of the bluff adjacent to Long
Island Sound, (2 ) addition at less than 15 feet on
4 a single side yard, and ( 3) deck existing at less
than the 40 feet from the top of the bluff,
5 required minimum under ZBA #3613 . Location : 235
Soundview Road, Orient . "
6 And you are?
MR. RETUS : Brian Retus, 1250 Northsea Drive .
7 I currently reside at 1250 Northsea Drive, a block
away.
8 BOARD MEMBER SIMON : Would you like to --
MR. RETUS : Sure, basically, we ' re trying to
9 -- we bought this home from a neighbor
approximately a year ago, Merry and I . This is my
10 wife, Merry Retus right here . When we bought the
home, it ' s a cape cod that was originally built in
11 1966 . We sat down with Mike Macrina, our
architect who ' s here in case there are any
12 architectural or engineering questions . When we
met with him, Merry had a folder of different
13 ideas that she had put in the folder for years and
we told him to build us a house, to design a house
14 with two criteria . Number one, to stay within the
footprint and number two to stay within the
15 character of the neighborhood. Having said that
I ' d like to present to the board, I took some
16 pictures of some homes on the block. I also need
to turn this in .
17 BOARD ASSISTANT KOWALSKI : Thank you very
much .
18 MR. RETUS : I also have a letter from one of
my neighbors that we didn ' t request but they felt
19 they wanted to do for us since they wouldn ' t be
here, they ' re on vacation . I ' d like to present
20 that to the Board also . The letter, by the way,
is from our neighbor directly to the east of us
21 and they are the only full time people that we
were required to notify.
22 BOARD ASSISTANT KOWALSKI : The letter is from
Rob Shore (phonetic) for the record dated June
23 20th .
CHAIRMAN DINIZIO : Basically, it states that
24 these are some upstanding people and they have no
objection to the application .
25 MR. RETUS : Thank you . I know you have the
plans but Mike drew this up for us to take a
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 gander at . Basically, what we ' re asking for a
variance would be to convert a one and a half
3 story cape to a two-story home . We ' re essentially
converting existing attic space to usable living
4 space . Also in the variance there was a question
about the deck. What we ' re proposing to do is
5 there ' s a deck there right now, we ' re proposing to
stay within the same footprint of the deck.
6 We ' ll replace the deck with a new deck but the
dimensions are not going to be changed.
7 BOARD MEMBER SIMON : Is it going to be
covered?
8 MR. RETUS : Yes .
BOARD MEMBER SIMON : It ' ll be covered from
9 the deck to the porch essentially?
MR. RETUS : Yes without changing the
10 dimensions of the footprint of the deck.
CHAIRMAN DINIZIO: You ' re not going to be
11 closed.
MR. RETUS : There are five columns . What
12 we ' re asking the Board to grant is a variance to
build this home . We ' re going to make it our
13 permanent home . Like I said, we live a block away.
We feel it ' s of modest size and fits in perfectly
14 to the character of the neighborhood. I also
believe with us taking the house and adding the
15 extra drainage to it, if you were to stand at the
house now when it rains, Merry calls it the splash
16 house . There ' s water that splashes all over . With
the proper drainage, I think we ' ll be well in the
17 scope of being good stewards for the land and
taking the water where it should be . We ' ve also
18 agreed, of course, to the ten foot no mow zone .
Basically, I think the result would be a win/win
19 situation . We ' d have a beautiful home to live in.
I think Mike did a great job designing it . The
20 protection will be as good or better for the
environment than it is now under the current
21 conditions of the property. I think that ' s all I
have to say.
22 CHAIRMAN DINIZIO: Okay. Anybody else have
anything?
23 BOARD MEMBER OLIVA: I just want to know have
you checked the foundation?
24 MR. RETUS : Yes .
BOARD MEMBER OLIVA: Do you have an
25 engineer ' s report that you can give us?
CHAIRMAN DINIZIO: He doesn ' t need to give us
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 that .
BOARD MEMBER OLIVA: He doesn ' t? He ' s putting
3 a two-story on .
CHAIRMAN DINIZIO : If he ' s going that far,
4 he ' s going to get stopped. When he gets stopped,
then he ' s going to have to do whatever he needs to
5 do .
MR. RETUS : We ' ve gotten bids from various
6 contractors and we did ask them to take a look at
the structure to give us recommendations on it .
7 CHAIRMAN DINIZIO: How old is the house?
MR. RETUS : 41 years old?
8 CHAIRMAN DINIZIO: What kind of -- block
foundation?
9 MR. RETUS : Yes .
CHAIRMAN DINIZIO: Cement? Full basement .
10 MR. RETUS : Yes, with a crawl space .
CHAIRMAN DINIZIO: So you can walk down there
11 and see that it ' s nice and dry?
MR. RETUS : Yes .
12 CHAIRMAN DINIZIO: It is dry?
MR. RETUS : Yes , it is .
13 BOARD MEMBER SIMON : How far is the house
from the top of the bluff?
14 MR. RETUS : You have the survey there . I
believe it ' s 38 feet, 36 feet .
15 BOARD MEMBER SIMON : At one time it was 56
feet, am I giving the right information?
16 MR. RETUS : We only bought the house a year
ago so I don ' t .
17 BOARD ASSISTANT KOWALSKI : It was 40 feet .
BOARD MEMBER SIMON : I may be thinking of
18 another application where the bluff shifted from
1987 .
19 BOARD MEMBER OLIVA: It eroded back in the
mid ' 90s .
20 BOARD MEMBER SIMON : Is there any concern
that the bluff will continue to erode so that in
21 ten years from now it ' ll be a lot closer to the
house than it is now.
22 MR. RETUS : I think that can be answered by
-- there were two letters that were faxed to us
23 from the zoning board. The one was from the
Suffolk County Soil and Water . If I can read it,
24 "we have received your request for an evaluation
and recommendations regarding the project
25 referenced above . A site inspection was conducted
on June 14 , 2007 and the following conditions were
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 observed. The existing residence is approximately
35 feet from the top of the bluff at the closest
3 point . " It ' s actually 36 . "Between the residence
and the top bluff, the land is vegetated with turf
4 grasses and the land slopes toward the bluff and
toward the east . The bluff face is well vegetated
5 with herbaceous and woody plant materials and one
Pitch Pine tree . There is an existing stairwell to
6 the beach . Numerous large boulders are positioned
at the tow of the bluff and the bluff appears
7 stable . If the conditions of maintaining a ten
foot wide non-turf buffer landward of the bluff
8 top and outletting roof runoff into dry wells , the
proposed additions to the residence should not
9 adversely affect the stability of the bluff . " I
think your concern was addressed by this letter .
10 BOARD MEMBER SIMON : Right and we have
copies .
11 MR. RETUS : Also, we ' re not building anything
closer to the bluff . We ' re staying where we are as
12 far as the existing footprints is concerned. Does
that answer your question?
13 BOARD MEMBER SIMON : Yes .
CHAIRMAN DINIZIO: Anybody else?
14 BOARD MEMBER WEISMAN : The proposed copula at
the top according to the section that you ' ve drawn
15 here does not appear to be a habitable . It ' s a
light well and it ' s not habitable .
16 MR. RETUS : Correct .
BOARD MEMBER WEISMAN : The side yard setback
17 of 5 feet 7 inches is a consequence of a proposed
shower, outdoor shower . In fact, the primary
18 structure has got a ten foot side yard?
MR. RETUS : That is correct .
19 BOARD MEMBER WEISMAN : Soil and Water refers
to the cutting down of a Pitch Pine tree on the
20 bluff?
MR. RETUS : That is correct which we intend
21 to do .
BOARD MEMBER WEISMAN : You intend to do that?
22 But leave, of course, the stump and the roots in
place . Just want to make sure you ' re aware of
23 that .
MR. RETUS : Merry had actually did some
24 research and from what she read that would be the
proper thing to do so the wind doesn ' t grab the
25 tree .
BOARD MEMBER WEISMAN : I see . So it doesn ' t
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 affect the view particularly. So you ' re just
concerned about it .
3 MRS . RETUS : No, it ' s a dead tree but I
didn ' t want to take issue with it .
4 BOARD MEMBER OLIVA: If the wind whips up and
it rips it out, it ' s going to rip out a lot of
5 your bluff .
MRS . RETUS : That ' s why we were glad to see
6 it taken down .
BOARD MEMBER WEISMAN : Your survey doesn ' t
7 show, unless I have the site plan here which I 'm
not finding location of dry wells . I presume
8 that ' s not a problem. It ' s going to drain as per
code anyway.
9 MR. RETUS : Right .
BOARD MEMBER WEISMAN : Generally a survey
10 will propose where dry wells will be located. I
presume you have no problem referencing -- if we
11 reference in our decision --
MR. RETUS : Not at all, please do .
12 BOARD MEMBER WEISMAN : for roof runoff .
Okay. No more questions .
13 CHAIRMAN DINIZIO: I don ' t know that we would
want to see that before hand before we make our
14 decision. Is there a possibility that you can just
draw dry wells on a plan?
15 MRS . RETUS : It was given to the Building
Department .
16 BOARD MEMBER WEISMAN : They have one with dry
wells on?
17 MR. RETUS : The Trustees required it and then
we went .
18 CHAIRMAN DINIZIO: Can you just give us a
copy of that survey. Send it over, we ' ll have it .
19 MRS . RETUS : Okay.
MR. RETUS : Let me just, if you don ' t mind me
20 taking a look.
BOARD MEMBER WEISMAN : We don ' t have anything
21 with dry wells, I know we don ' t .
MR. RETUS : Is yours dated August 2, 2006?
22 BOARD MEMBER WEISMAN : Yes, it is but there ' s
no dry wells .
23 MRS . RETUS : I can go right over .
BOARD ASSISTANT KOWALSKI : This is November
24 28 , 106 .
MR. RETUS : Merry can pick that up tomorrow.
25 CHAIRMAN DINIZIO : Okay. So if you can get
that to us, that would be a help . We ' ll have all
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 our ducks in a row before we make our decision .
It ' ll just be as per code . So whatever the
3 Building Department wants to give you .
MR. RETUS : Very good.
4 CHAIRMAN DINIZIO : Does anybody else have any
questions . Anybody from the audience would like to
5 make a comment concerning this application .
Hearing none, I ' ll entertain a motion to close
6 this hearing until the 12th .
(See minutes for .resolution . )
7
Hearing #5826 - Cingular at EM
8 CHAIRMAN DINIZIO: What ' s next? Cingular .
Who ' s is this?
9 BOARD MEMBER WEISMAN : This is mine . For the
record, I 'm going to read the legal notice into
10 the record.
"Request for a Special Exception under
11 Sections 280-69 and 280-70, concerning
installation of a proposed public utility wireless
12 telecommunications facility at the premises by
affixing wireless telecommunications antennas
13 within an approved pole to be built, and to
install related equipment as required, at 9245
14 Route 25, East Marion . "
CHAIRMAN DINIZIO: Okay. Who ' s going to speak
15 first? Just say your name for the record, please .
MR. RE : Sure . Good afternoon, Chairman
16 Dinizio, Members of the Board. Appearing for the
applicant, Lawrence Re of Mundley, Meade, Neilson,
17 Re, (phonetic) 36 North New York Avenue,
Huntington. This is an application brought by
18 Cingular to permit it to install antennas in the
pole that as already been approved and a building
19 permit has already been issued for the pole .
Cingular, as the Board is aware is licensed by the
20 FCC to provide personal wireless service
facilities here in Suffolk County and throughout
21 much of the United States . Cingular strives to
provide reliable service throughout it ' s license
22 coverage area and there is a service deficiency in
the vicinity of the proposed site . This would
23 enable Cingular to eliminate the service
deficiency. Cingular is aware that the Town of
24 Southold is concerned about the proliferation of
monopoles and towers throughout the Town . It has
25 also studied the Town code as it relates to the
placement of facilities and the Town code is quite
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 thorough and quite specific in that it
specifically states that one of the purposes of
3 the code is to minimize visual impact and it also
states in Section 280-67 that facilities are
4 preferred on existing structures rather than new
towers . With that in mind, the application today
5 is to allow us to install antennas within an
approved pole . We ' ll have virtually no visually
6 impact . The only physical addition would be the
installation of some cabinets . They will be a in a
7 fenced in area and then surrounded by 7 foot
Evergreens . There will be virtually no visual
8 impact of this facility. At the same time, it
enables Cingular to provide service to the area .
9 As the Board is probably aware, the
telecommunications act of in 1996 preempts local
10 government from regulating the placement of these
facilities on the basis of the emissions of the
11 site so long as we comply with FCC standards . We
do comply . We ' ll be many, many times less then
12 the FCC standard for emissions . I have a number
of documents I ' d like to submit to the Board and
13 then I ' ll proceed. I have a copy of the findings
of the Zoning Board of Appeals dated March 9th
14 approving the fire districts pole and the building
permit . Actually, why don ' t I read off what I ' ll
15 hand in and then I ' ll come up once rather then run
back and forth . I have the affidavit of our radio
16 frequency engineer with his maps showing the
coverage area . I have the planning and zoning
17 analysis of Frudin, Thaw and Elkowitz (phonetic)
relating to the proposal . The Synetics Corporation
18 report which addresses compliance with the FCC
emissions standard and also the report of our
19 appraiser, Michael Lynch, attesting to the fact
that the inclusion of the antennas within the pole
20 would not have an affect on property value . So
collectively if I can hand this up to Linda .
21 I ' ll try to abbreviate our presentation .
I ' ve been before the Board on a number of
22 occasions with respect to applications similar to
this and I have a number of witnesses here . But
23 rather than call each one up, I ' ll just name who
is here and then if you have specific questions
24 that relate to their area of expertise, I ' ll be
happy to call them up . I would like to call,
25 however, my professional engineer who will
describe the layout in a little more detail so
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 that you can have a better idea of the proposal as
it relates to the property in question . Why don ' t
3 I do that, John Stevens is a licensed professional
engineer in the firm Infinergy. His firm prepared
4 the plans and if you could put a copy up on the
easel and then identify yourself .
5 MR. STEVENS : John Stevens, Infinergy
Engineering, 300 Great Oaks Boulevard, Albany, New
6 York.
MR. RE : Mr . Stevens, you put the copy of the
7 site plan on the board. If you could, in a general
way, describe our proposal, the antennas is in the
8 pole and the equipment cabinets .
MR. STEVENS : Yes, the approved poles are 110
9 feet tall . The Cingular antennas will be located
within the pole itself, inside the pole casing .
10 There will be three antennas located roughly at
the top again inside the pole . At the base of
11 the 110 foot approved pole are the cabinets . The
cabinets are located roughly around the base of
12 the pole . There are seven cabinets . The cabinets
are being surrounded by a black vinyl coated chain
13 link fence . The site will be served by
underground power.
14 MR. RE : Okay. Thank you, Mr . Stevens . Does
anyone have any questions of Mr . Stevens
15 specifically?
BOARD MEMBER WEISMAN : This is all as per
16 site plan approval, the planning board?
MR. RE : We ' ve been working with the planning
17 board. We ' ve gone through work sessions and
they ' ve written a memorandum that they are happy
18 with the present location .
BOARD MEMBER WEISMAN : I don ' t know if this
19 is relevant to your application, are you aware of
whether or not there will be other wireless
20 antennas co-locating on this pole?
MR. RE : I don ' t know whether immediately
21 there will be but I would imagine, I know that
many of the other carries have deficiencies in
22 East Marion and the pole is being erected in such
a way that there will be room inside the pole for
23 other antennas so that you won ' t have towers
popping up all over East Marion .
24 BOARD MEMBER WEISMAN : The only external
antennas are the first responders , the fire
25 department .
MR. RE : That ' s correct .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 BOARD MEMBER WEISMAN : One located directly
at the top, the other somewhat down towards the
3 base .
MR. RE : Correct .
4 BOARD MEMBER OLIVA: How much of an area will
this cover?
5 MR. RE : The maps that I just submitted
actually show it . It runs generally -- why don ' t I
6 get the larger map and I ' ll have the witness
describe . Mr . Hussein .
7 BOARD MEMBER WEISMAN : A propagation map?
MR. RE : Yes , it ' s a propagation map .
8 BOARD MEMBER WEISMAN : This is your radio
frequency engineer?
9 MR. RE : Yes, the next individual is . Mr .
Hussein, why don ' t you give your name and address
10 for the Board.
MR. HUSSEIN : My name is Sahed Hussein, on
11 behalf of the client . 1717 Route 289, Fairlawn,
New Jersey.
12 MR. RE : And you ' re familiar with Cingular ' s
network here in the Town of Southold?
13 MR. HUSSEIN : Yes, I am.
MR. RE : Have you prepared a map that shows
14 the reliable coverage within the vicinity of East
Marion and going west towards Greenport?
15 MR. HUSSEIN : Yes, I have .
MR. RE : And the map that ' s presently before
16 the board and I ' ve given the Board a miniature
copy, the areas that are green represent the area
17 of reliable coverage . Most areas that are not
colored in are areas that are less reliable?
18 MR. HUSSEIN : Correct .
MR. RE : Now, if you turn to the next map,
19 what does the circle represent .
MR. HUSSEIN : It represents the area we will
20 get coverage from our proposed site .
MR. RE : So it makes the coverage with the
21 green board with the coverage that ' s being
afforded by the fire district .
22 MR. HUSSEIN : Correct .
MR. RE : So that pretty much shows how that
23 splits up .
CHAIRMAN DINIZIO: That fills in this space?
24 No other towers would be needed?
MR. RE : From this area -- from here all the
25 way out to here, the coverage will be reliable to
Cingular .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO: Now, you are on the
highest point of each of those towers?
3 MR. RE : Yes, I believe so, yes .
CHAIRMAN DINIZIO: You are . Now, if you had
4 to go down lower, like 20 feet in separation,
would that map look about the same?
5 MR. RE : The higher you are, then the broader
the area .
6 CHAIRMAN DINIZIO: Considerably.
MR. REY: Well., I don ' t know considerable .
7 Sort of a touchy area . It would be noticeable on
the map .
8 CHAIRMAN DINIZIO: What I 'm getting at is,
the next guy that comes in, may need another
9 tower?
MR. RE : Well I guess we ' re getting ahead of
10 ourselves but, we ' re only occupying a small area
at the top with these antennas so that the area
11 immediately beneath us will be available to the
next carrier . All things being equal, each carrier
12 going down will have somewhat less coverage except
for the fact there are some frequencies that
13 transmit better . So, for example, Verizon
transmits at a frequency that can cover a larger
14 area?
MR. HUSSEIN : I ' m not familiar with Verizon
15 because there have been so many changes going on
but for Cingular, for example, we have two lines
16 with 850 megahertz (phonetic) for a total of about
1900 megahertz . A general rule of thumb, the lower
17 the frequency, it travels much higher . So anybody
who has that has for our case 850 megahertz , will
18 have a little bit better coverage as opposed 1900
that gets more diminished of the coverage . The
19 coverage of the footprint is much smaller . So the
higher the frequency gets poorer coverage . The
20 lower, better the coverage .
CHAIRMAN DINIZIO: Anybody have any questions
21 for this gentleman? Ruth? Michael? Leslie?
BOARD MEMBER WEISMAN: Well, I suspect the
22 contact in this particular application --
CHAIRMAN DINIZIO: Let ' s hear all the
23 information.
BOARD MEMBER SIMON : I have a technical
24 question. Did you say higher has greater
coverage?
25 MR. HUSSEIN : Less .
BOARD MEMBER SIMON : And why is that?
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 MR. HUSSEIN : Just a general nature of the
frequency.
3 BOARD MEMBER SIMON : I was looking at the
physics of it . I thought higher frequency meant
4 higher energy?
MR. HUSSEIN : Right but the higher frequency
5 gets distorted very easily. It does travel much
lesser distance . The signal gets distorted much
6 easier at the higher frequency as opposed to the
lower frequency. It accommodates much more
7 information as far as that .
BOARD MEMBER SIMON : Is that because -- well,
8 higher frequency means shorter wavelength. And the
shorter wavelengths are more subject to
9 distortion?
MR. HUSSEIN : Correct .
10 MR. RE : Rather than hand in the large map,
we submitted the smaller one .
11 CHAIRMAN DINIZIO: I would like to have that
for the Town at some point in time . I mean if you
12 guys want it for the hearing --
MR. RE : We can take the clips off .
13 CHAIRMAN DINIZIO: Great . That would be good.
MR. RE : While Mr . Hussein is doing that, the
14 other witnesses who are present this afternoon are
Michael Lynch, the appraiser, Jimmy Wallace, East
15 Marion Fire District, the planning expert and Lou
Cornacchia of Synetics (phonetic) who prepared the
16 FCC emissions compliance report . If the Board has
any specific questions of any of the witnesses ,
17 I ' d be happy to bring them up . In summary, the
planning expert has prepared a report stating that
18 this will have no detrimental effect on the
surrounding area . Mr. Lynch ' s report states that
19 it would not diminish property values and
Mr . Cornacchia explains how he determined that the
20 site would comply with FCC standards . If the Board
does have questions . I ' d be happy to bring them
21 up .
CHAIRMAN DINIZIO: I ' d like to hear the
22 property values , if you don ' t mind.
MR. RE : Okay. Mr . Lynch?
23 MR. LYNCH : Good afternoon . My name is
Michael Lynch, I 'm a State Certified Real Estate
24 Appraiser with offices on 15 Dewey Street in
Huntington . The application here is for antennas
25 that will be completely concealed and out of
sight . The only part of the application where any
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 of the apparatus will be visable is the ground
equipment and that will be shielded with 7 foot
3 Red Cedars . As far as the application, this is one
of the better applications that I ' ve worked on in
4 that the antennas themselves will be completely
concealed, they ' ll be out of sight . It ' s very
5 similar to other applications I ' ve had in the Town
of Southold with respect to church steeples where
6 we ' ve got an existing structure or soon to .be an
existing structure that was recently approved and
7 we ' re locating within that particular structure to
minimize any visual aesthetics that there may be .
8 In this case, of course, we ' re going within a
recently approved structure . So there will not be
9 any adverse effect to surrounding property values .
I ' ve outlined in my report several studies which
10 are, in fact, when compared to this extreme
examples in those particular studies , they ' re all
11 exposed antennas whether they be on existing water
tanks or roof tops or lattice towers across Nassau
12 and Suffolk Counties . In this particular case,
again, the antennas themselves will be completely
13 concealed and there will be no adverse effect to
the community.
14 BOARD MEMBER SIMON : May I ask you a
question? It ' s interesting . You ' re on expert on
15 real estate appraisal and you ' re talking about the
physical effect of this . Property values are a
16 matter of human psychology.
MR. LYNCH : That ' s correct .
17 BOARD MEMBER SIMON : So what the objective
facts are may or may not be closely correlated
18 with property values because property values
depend on people ' s beliefs and perceptions .
19 MR. LYNCH : Correct .
BOARD MEMBER SIMON : Do you have information,
20 for example -- let ' s make it easier. When -- do
you have information on when such things, unlike
21 this one, would have a negative effect on property
values? Is it when they are just simply lower or
22 bigger or uglier?
MR. LYNCH : I really didn ' t leave anything to
23 chance . I 'm basing my conclusion on studies that
I carried out before and after studies of new
24 structures, exposed antennas that went up in a
particular neighbor and I looked at a sample of
25 sales prior to the installation of those antennas
and then a sample subsequent to see if there was
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 any effect taking in account the overall
appreciation or depreciation that may have
3 occurred in that community. What I found was that
adjusting for such things as appreciation, that
4 there was no effect of surrounding property
values . Again in this case -- those are extreme
5 examples where it may have been a new structure
application such as a new monopole . In this case,
6 we ' re going in a recently approved structure that
will be completely concealed. But I based my
7 conclusion on studies where we had either roof top
applications where the antennas were exposed to
8 the surrounding community and I did a before and
after study.
9 BOARD MEMBER SIMON : Are any of those
studies published? Not by you, necessarily but is
10 there a literature on this to put a correlation
between changes in property values and physical
11 changes which are made by --
MR. LYNCH: As far as I know across the US , I
12 haven ' t seen any studies that have conclusively
shown that the presence of wireless facilities ,
13 such as what we ' re proposed, has resulted in any
devaluation to surrounding property values . But
14 again I stuck to Long Island with respect to my
studies .
15 CHAIRMAN DINIZIO: Okay, Michael?
BOARD MEMBER SIMON : Yes .
16 CHAIRMAN DINIZIO: Anybody else have
questions of this gentleman?
17 (Audience member stands up . )
CHAIRMAN DINIZIO: We ' ll we want to hear all
18 their testimony first and then we ' ll hear your
comments .
19 MR. RE : One aspect of our application that I
haven ' t mentioned yet is the fact that recent
20 statistics show that anywhere between 40o and 500
of calls placed to 911 come from mobile telephones
21 so that they ' ve become a major part of the safety
network of the community. To address that in a
22 little more detail, I ' d like to ask Mr. Boyd who
represents the fire district to speak on that
23 issue briefly. Mr. Boyd?
MR. BOYD: Chairman and Members of the Board,
24 Edward Boyd, Southold, New York. I represent the
East Marion fire district . It goes without saying
25 that we have in favor of this application and we
support it wholeheartedly. 911 communications are
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
r
2 very, very important . The area that we ' re talking
about here, like many of the places along the
3 Sound, very often result in a 911 communication
going to a Connecticut antenna . And that puts in a
4 considerable delay. The call is received in
Connecticut and then it ' s routed back to the PSAP,
5 public service answering point here in Southold,
which is the dispatch vehicle for all of the fire
6 departments on the North Fork. So anything that
can be done to cut down on that delay and to make
7 911 a more viable means of accessing emergency
assistance for the population is something that we
8 very much support . The fire district, for that
reason, is fully behind application to co-locate
9 on this tower .
CHAIRMAN DINIZIO: Okay. Do you have a
10 question?
BOARD MEMBER WEISMAN : Yes .
11 CHAIRMAN DINIZIO: Go ahead.
BOARD MEMBER WEISMAN : Yes . I ' ve heard many
12 people testify that a lot of the emergency calls ,
the 911 calls come from cell phones . To what
13 extent are there written research studies and to
what extent is this undocumented anecdotal
14 evidence?
MR. BOYD: There are written research studies
15 that I cannot cite at that particular time because
I don ' t have them. But I have seen them. I have
16 read them. Perhaps Mr. Re would have the actual
figures on that . He just cited a statistic of
17 fairly recent nature . I read a great deal in the
way of fire service magazines which have all sorts
18 of information coming in and I have to admit I
can ' t immediately draw up in my mind one of these .
19 Mr. Re probably has through his business .
BOARD MEMBER WEISMAN : Okay. Perhaps we can
20 hear from him.
MR. RE : I don ' t have the study with me,
21 however, I ' d be happy to ask my client to provide
one and I could send it to the Board. I ' ve read
22 articles and I ' ve read materials that have given
us that number. I just don ' t have it with
23 materials today.
BOARD MEMBER WEISMAN : That would be very
24 helpful .
CHAIRMAN DINIZIO : Anything else? You want to
25 ask more questions?
BOARD MEMBER WEISMAN : I do have two more .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINZIO : Okay. Go ahead.
3 BOARD MEMBER WEISMAN: Actually, probably for
the RF engineer . For the record, just so we
4 understand, I want to be clear that on that
propagation map, the coverage goes from the
5 boundary of the Hamlet of Greenport -- it looked
like it was but I wasn ' t sure where, so I want to
6 clarify -- all to way to almost Orient Point .
MR. RE : No .
7 BOARD MEMBER WEISMAN : Where does it stop?
Was it the causeway, the Orient Fire?
8 MR. RE : It ' s beyond the causeway.
BOARD MEMBER WEISMAN : So it overlaps with
9 the Orient Fire Department?
MR. RE : Yes , it overlaps with Orient Fire .
10 BOARD MEMBER WEISMAN : Okay, I see it . That ' s
one question . The final question I have is a
11 technical one . This tower is not built yet . It ' s
approved but it ' s not built yet .
12 MR. RE : Yes, the building permit was issued
and I understand construction is scheduled to
13 commence next week.
BOARD MEMBER WEISMAN : For the record,
14 whatever your appropriate expert witness is, I ' d
like to understand when a tower is built and
15 someone, a wireless service is about to co-locate,
how, structurally, does that take place? What
16 happens in the way of inserting it into this --
how does that happen? I think the neighbors would
17 be rather interested in understanding whether
equipment has to come in. What kind of disruption
18 goes on?
MR. RE : Right . Mr . Stevens would be able to
19 answer that .
MR. STEVENS : Again, I 'm John Stevens . Once
20 the pole is constructed and you get a subsequent
applicant, a wireless carrier, that wants to
21 install their antennas, after all the different
paperwork is signed up, practically speaking what
22 then happens is , a crane shows up . Usually takes
one to two days . Lifts the antennas up . The panels
23 are removed from the pole itself and the antennas
are put in inside . The cable is then snaked down
24 through the pole to the bottom where the cabinets
are then placed. So the crane is there usually
25 one day, sometimes up to two days just to get the
antennas up . The panels are then reattached to the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 pole because the antennas are then inside . The
work then finishes up on the ground. Takes one to
3 two weeks on the ground to put the cabinets on,
some concrete pads and to run the power and telco
4 to the cabinets .
BOARD MEMBER WEISMAN : Thank you .
5 CHAIRMAN DINIZIO: Okay. We should also hear
from the -- about the guidelines .
6 MR. RE : Sure . Mr . Cornacchia?
Okay. State your name and address .
7 MR. CORNACCHIA: Certainly. My name Lou
Cornacchia, C-O-R-N-A-C-C-H-I-A.
8 MR. RE : Mr . Cornacchia, could you briefly
describe your professional background?
9 MR. CORNACCHIA: Certainly. I 'm a degreed
electronic engineer, graduate of Manhattan College
10 School of Engineering . I ' ve worked with the
defense industry for about 30 years working on
11 microwave systems, recognizance systems, counter
measure systems and I ' ve worked for about 12 years
12 now providing FCC compliance studies and
propagation measurements in the field.
13 MR. RE : And you ' ve testified before this
Board in that capacity in the past?
14 MR. CORNACCHIA: Yes, I have .
MR. RE : With regard to this proposal, have
15 you studied the proposed antennas that Cingular
request this Board to approve and be installed
16 inside the fire districts pole?
MR. CORNACCHIA: Yes, I have .
17 MR. RE : And did you compare the emissions
that would be anticipated through the antennas
18 with the FCC standards?
MR. CORNACCHIA: I did.
19 MR. RE : And could you describe how you
conducted your study and what the results were?
20 MR. CORNACCHIA: Certainly. What we did was,
we examined the proposed installation and the
21 proposed application by the wireless industry and
also the model of the antennas, the proposed
22 transmitted output power, number of channels,
frequency at which they would be broadcasting at
23 and the elevations of the antennas . We also
examined the police antenna proposed
24 installations, the elevations, frequencies, again
the power levels and the center lines or the
25 elevations of the antennas as it relates to
ground. We did individual analysis for each of the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 antennas and determined the impact in terms of
emissions that could occur. Worse case criteria
3 applied in accordance with the FCC OET manual
which predicted highest possible emissions but
4 will never occur . In fact, the emissions that do
occur are usually ten to hundred times less then
5 what we predict . We then compared the emissions to
the permitted exposure levels that the FCC has
6 mandated as a criteria . We added the percentages
of the emissions of each of the individual
7 transmitted signals and totaled them. Our result,
the total emissions are less than 10 of the
8 permitted exposure levels .
MR. RE : That would be cumulative? The fire
9 department --
MR. CORNACCHIA: Cumulative . Three fire
10 departments and the Cingular antenna and three
sectors broadcasting circularly throughout the
11 community. We did measurements, I should say we
did analyses both at the base of the approved
12 tower to a distance of 2000 feet and we selected
the nearest building, fire department building,
13 nearest homes and other nearby homes in the East
Marion community. The results were far, far lower
14 than might seem to be but we are extremely low and
we are in compliance with the FCC standards .
15 CHAIRMAN DINIZIO: And you will remain so,
right?
16 MR. CORNACCHIA: Yes . They will .
CHAIRMAN DINIZIO: These emissions, are they
17 constant?
MR. CORNACCHIA: We assume the emissions to
18 be transmitting 24 hours a day, 365 days a year,
continuously. The standards are continuous
19 standards , by the way .
CHAIRMAN DINIZIO : It ' s a continuous RF
20 signal that leaves that tower constantly?
MR. CORNACCHIA: Yes . We assume they are .
21 CHAIRMAN DINIZIO: And you modulate
accordingly by --
22 MR. CORNACCHIA: On and off . We assume
they ' re not . We assume they ' re constant even
23 though the fire department is not transmitting
continuously, we assume they are in all directions
24 evenly distributed.
CHAIRMAN DINIZIO: I think there was concern
25 when this tower was being before us before as fire
department about emissions and constant emissions .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 We had testimony from a neighbor that was
concerned about that .
3 MR. CORNACCHIA: Well , you know, there are
other sources of RF, fire department, antennas on
4 trucks, police department antennas, baby monitors
that are used in the home, leakage from the
5 microwave oven, other RF devices that can be found
in the community, taxi cab two-way radios that use
6 whip antennas, automatic door openers in
department stores and so on. So we ' re always
7 engaged in interfacing with RF devices, in our
communities, in our homes, in public places . And
8 in all instances, we are always within the
permitted exposure levels . But this isn ' t the only
9 source of emission and since it is , in this case,
being proposed, and if it were installed, the
10 emissions would be far less than what you might
encounter in the home, from a microwave oven or a
11 cordless phone in your home? Which is a wireless
based station, essentially.
12 CHAIRMAN DINIZIO : Are are you saying the
emission would be lower than a 900 megahertz
13 phone?
MR. CORNACCHIA: Yes . A 900 megahertz phone
14 can transmit up to 30 microwatts per centimeter
squared at the base station. Now, it ' s not always
15 on . But when it gets turned on, it ' s on .
CHAIRMAN DINIZIO: Right . But if you ' re
16 talking on it, it ' s going to be on?
MR. CORNACCHIA: Yes .
17 CHAIRMAN DINIZIO: Anybody else have any
questions?
18 BOARD MEMBER WEISMAN : Well, the expert is
here . This is now Cingular . So when Verizon comes
19 in, what would the cumulative effect be with each
new carrier that co-locates? Can you predict that?
20 MR. CORNACCHIA: I was going to suggest that
if you duplicated this proposed installation with
21 fire department and with the proposed carrier and
duplicated it , you ' d still be well within the
22 permitted exposure levels by far . Still below 3%
of the 100% permitted.
23 MR. RE : I ' ve represented applications where
all the companies get together and propose a brand
24 new traditional monopole . I ' ve read the reports
of the FCC emission standards compliance and in
25 most cases , they ' re still considerably low, 2-3% .
Now, of course, under your code, if there were to
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 be co-locators, they would have to come before you
and they would have to submit reports such as this
3 so you can be assured that they would be
compliant .
4 MR. CORNACCHIA: We clearly state that in
our report , by the way. It ' s an FCC requirement .
5 CHAIRMAN DINIZIO : Anybody else? Ruth?
BOARD MEMBER OLIVA: No .
6 CHAIRMAN DINIZIO: Michael?
BOARD MEMBER SIMON : No .
7 CHAIRMAN DINIZIO: I think that ' s all we have
unless you have something more to add?
8 MR. RE : No . I think that ' s it . I think that
in reviewing the code provisions with respect to
9 these types of applications, we ' re fully compliant
with all of the code provisions that relate to
10 sites like this . I think the code was written with
a view toward minimizing visual impact and a view
11 toward co-location and I think we ' re fully
compliant .
12 CHAIRMAN DINIZIO: Thank you very much. With
that, I 'm going to ask for comments from the
13 audience . Is there anybody in the audience that
would like to speak for or against this
14 application?
15 MR. BOYD: I was going to say something in
favor of it wearing another hat . As president of
16 the Southold Town Fire Chief ' s Council, not all of
our volunteers fire fighters are yet equipped with
17 two-way portable radios and we find that the
cellular telephone is still a very, very important
18 means of communication among ourselves as opposed
to communicating back to the day station. It
19 helps a great deal in deciding who ' s going to go
and get a truck or who ' s going to go directly to
20 the scene or something like that . And until the
financial status of all the districts gets to a
21 point where it allows the universal use of two-way
radios by the fire fighters , the cellular
22 telephone as become a very, very important type of
thing and anything we can do to improve the
23 efficiency of the cellular telephone is something
that we ' re very much in favor of . This seems to
24 fill a gap in the area between Greenport and
Orient that is a difficult place to deal with . .
25 What I mentioned before about calls going to
Connecticut is a continuing problem. This tower,
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2 the antenna placement on this tower would be a big
help there as well .
3 CHAIRMAN DINIZIO: Okay, sir? Just state your
name and your address, please .
4 MR. LEKAKIS : Sure . My name is Artemis
Lekakis . My address is 1367 Ovington Avenue in
5 Brooklyn, New York. My family owns property that
is 89 feet from the proposed cell phone tower
6 based on the map that was provided to us by
Cingular ' s counsel . I have assembled some
7 documents for the Board. May I approach the Board?
CHAIRMAN DINIZIO: Certainly.
8 MR. LEKAKIS : Thank you, Chairman.
Mr . Chairman, just touching on the topics and
9 Members of the Board, ,I thank you for listening to
public comments at this time . Just to let you
10 know the topics that Cingular ' s counsel spoke
about with his experts .
11 CHAIRMAN DINIZIO: Sir, can I just ask you
one question?
12 MR. LEKAKIS : Certainly.
CHAIRMAN DINIZIO: Do you work in the
13 industry? Are you a radio frequency technician?
Any area of expertise?
14 MR. LEKAKIS : I have no expertise at all .
CHAIRMAN DINIZIO: Okay. I just wanted to get
15 that on the floor .
MR. LEKAKIS : But we ' ll get to that . As far
16 as I can tell, there were three main topics that
the Board was concerned about with Cingular ' s
17 application. Number 1 was emissions, 2 was
property values and 3 was fire fighter and fire
18 fighter response . Just touching on the basis of
emissions quickly. The submissions that I just
19 handed to the Chairman contains numerous articles
over the past 7 to 10 years which indicate that
20 the emissions from cell phone towers are not as
beneficial as Cingular would have you believe .
21 There ' s articles in there that detail the effects
on pregnant women; increased miscarriages, brain
22 tumors in children, loss of sperm cell count in
men and various other health ailments that have
23 been directly related to constant exposure of the
radiation of the type that comes from cell phones
24 and cell phone towers . These emissions are 24
hours a day, 7 days a week just like Cingular ' s
25 expert just told you. You cannot turn it off . One
of the concerns that I have about the community
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2 even though I don ' t live here is that once it ' s
going up, we won ' t know what the effects of this
3 will be until 20 years from now and it will not
come down during that time . The other concern
4 that I have is something that the Board touched
upon which is there will be a cumulative effect .
5 While Cingular ' s tower may be' below the FCC ' s
emissions standards , it is the first of many. Once
6 you allow Cingular in there, there will be no
bases upon which to deny other cell phone
7 carriers . When that tower, when that fire fighter
pole is full of cell phone towers, the cumulative
8 effect will be much greater than what it might be
with just Cingular in there .
9 CHAIRMAN DINIZIO : Sir, can I ask you a
question? Is it your opinion that it will be more
10 than the standard that ' s set forth by the FCC?
MR. LEKAKIS : That ' s an excellent question,
11 Chairman. I cannot contradict Cingular ' s expert ' s
testimony that the FCC standards will not be
12 complied with . However, based on articles that
I ' ve just handed to the Chairman and to the Board,
13 those standards were developed upon information
first considered in 1985 before studies about the
14 effects of the emissions . Other industrialized
nations have standards that are up to 10 , 000 times
15 lower . So if it ' s up 1% , that tower still can be
built in China or England or Sweden or other
16 industrialized nations with lower emissions
standards .
17 The next big concern and the big topic that
the Board considered was property values .
18 Cingular found an appraiser who would say cell
phone towers do not affect property values .
19 People forget about them. They don ' t know . Based
on the reading that I ' ve done and information
20 presented in the package that I gave to the
Chairman, that ' s simply not true . The studies and
21 the reports in the package that I gave to the
Chairman indicate that property values go down
22 anywhere from 2% to 40% . Will Cingular compensate
all its neighbors for the 40% loss of property
23 values caused by this antenna? If people want to
move because they ' re getting headaches and they
24 can ' t sleep and they can ' t function, will Cingular
pay them the difference that their house could
25 have gotten before they got sink? These are things
that I believe the Board can consider . While the
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2 Board cannot consider emissions, it can consider
the effects of those emissions on people and the
3 effects of those emissions on property values and
make its determination accordingly.
4 The next topic was firefighters and we had a
representative from the East Mario firefighter ' s
5 department who said there ' s a delay caused by
calls that are going to Connecticut and then come
6 back to 911 here . That delay might be a second or
two or maybe five seconds or ten seconds at the
7 most but in the materials that I gave to the
Chairman, the International Association of
8 Firefighters three years ago asked for a
moratorium on cell phone towers to be built on
9 firehouses because of the cognitive disruptive
effects it would have on firefighters . As a
10 result, they found firefighters with headaches .
Firefighters who couldn ' t think straight .
11 Firefighters who couldn ' t respond quickly.
Firefighters who could not do their job because
12 they were exposed to this radiation and no one is
closer than the firefighters . They were exposed to
13 this radiation every single day, 24 hours a day
for as long as they volunteered there . A ten
14 second delay by having a call go to Connecticut, I
think, is a small price to pay to have healthy
15 firefighters who can serve the community properly.
Of course I have a personal interest in coming
16 here . The property that my family owns is 89 feet
from the proposed tower, 89 feet . There are
17 studies in the material that I gave to the
Chairman and the Board that a cell tower within a
18 1000 foot radius is dangerous, 300 meters; 89
feet . And with respect to the appraiser, if it
19 will help the Board, I can see if I can retain an
appraiser who will contradict the conclusions
20 arrived at by Cingular if the Board so chooses .
Please let me know.
21 I thank you very much for listening to my
response to Cingular ' s application.
22 CHAIRMAN DINIZIO: I want to thank you, sir,
for the amount of information you gave us . I have
23 some reading to do this weekend. Leslie, did you
have any questions to ask this man? Mike?
24 BOARD MEMBER WEISMAN : Well, I also
appreciate the substance of your presentation and
25 your concerns and our job is to balance, as you
well know, all of the information we have
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2 available taken through public testimony.
BOARD MEMBER SIMON : I have a question . Do
3 you have information on other communities
elsewhere in the country who have pursued the line
4 of inquiry that you have been presenting with to
and fro from the cell phone people and the people
5 who are concerned about the effects? What ' s the
record on this issue?
6 MR. LEKAKIS : It ' s interesting . One of the
studies that I gave you in the materials shows
7 that, basically, the research, if you look at all
the research out there, it ' s 50/50 . Fifty percent
8 of the research says cell phones have deleterious
effects and 50% of the research says that cell
9 phones don ' t have deleterious effects . And then
there ' s a but . However, if you look at the
10 research that finds that cell phone towers and
cell phone radiations do not have a deleterious
11 effect, the vast majority of that research, nearly
80% , is sponsored by did the cell phone industry .
12 If you take out the studies that are sponsored by
did the cell phone industry, then the landscape
13 changes and the emissions question becomes more
clear when it ' s purely independent research . That
14 research would show approximately 75% to 80% would
find that there would be deleterious effects and
15 also 20% to 25% would find that there would be no
deleterious effects . Another interesting
16 phenomenon that I found in my research was --
MR. RE : Excuse me, Mr . Chairman. I know
17 it ' s impolite to interrupt, but my point would be
and I ' ve been kind of patient in listening, I
18 would object to permitting testimony by an
invidual who has stated that he has no expertise
19 at all in this field, from providing the Board
with information when the Board is, I 'm sure,
20 aware that the telecommunications act says that
all of the information he ' s providing is outside
21 the scope of the Board ' s review of this
application .
22 CHAIRMAN DINIZIO: Sir, I would agree with
you . However, I think we ' re going to take care of
23 that . I just would like -- if a guy lives 89 feet
away --
24 MR. RE : It ' s actually 105 feet .
MR. LEKAKIS : No, that ' s not accurate . It ' s
25 105 minus 15 ; the width of the fenced area .
CHAIRMAN DINIZIO : Hold on. We have to
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2 consider the community because we live here and
I 'm going to give everybody who has concern an
3 opportunity, okay. You heard me ask that question
about if he ' s an expert or not . I 'm going to take
4 that into consideration. Am I going to read that
whole thing? Probably not, but I 'm going to look
5 at it . But at the end of this hearing, I 'm going
to ask you to comply with the rest of the rules
6 that we have here and perhaps that will help
everybody here sitting in this room. He didn ' t
7 take too long .
MR. RE : No and I just wanted to make that
8 point .
CHAIRMAN DINIZIO: If we could just let him
9 have his say and anyone else who has concerns . If
the thing is on 24 hours a day, I want to get that
10 out .
MR. LEKAKIS : Mr . Chairman, thank you so much
11 for your consideration . Continuing with the
response to the Board ' s question, the majority of
12 the research would indicate, the independently
funded research, that there is a deleterious
13 affect from cell phones . Also interestingly in
the materials that I provided to you -- and I
14 understand it ' s a voluminous amount of materials
but if Mr . Chairman or any other interested
15 Members of the Board would like to look at the
materials, I ' ve prepared an appendix with a list
16 of all the materials organized by category and
there ' s a thumb index alphabetized in numerical
17 order, so you can turn to the article you find of
interest . There where are six articles that I
18 found written in the last two years an analogizing
the cell phone industry to big tobacco at the turn
19 of the century. Those articles said do you
remember the 1920 ' s advertisements by big tobacco
20 in which big tobacco would have a doctor smoking
and tell you how good it is to smoke and we all
21 know how that turned out . Those articles expressed
a concern by some independent researchers who feel
22 that this, the cell phone industry and the
emissions question, will be resolved in the same
23 way. I understand the limitations on the Boards
authority particularly of the emissions question .
24 But I don ' t believe that you have a limitation in
terms of property values and the safety of the
25 community. Those are two issues that I believe are
addressed in my presentation and the materials
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2 that I provided that should seriously factor into
the Board ' s consideration of a decision .
3 Particularly in view of the fact that when there ' s
one, there will be more .
4 CHAIRMAN DINIZIO: Okay. Anybody else have a
question for this gentleman?
5 BOARD MEMBER SIMON : I would like to make a
comment on that . I appreciate your answers .
6 Whether the industry has said -- ideological
commitment to one particular side is well known
7 that people who oppose it also have, some of them,
have their own ideological commitment . The problem
8 is not a matter of weighing the articles but we do
the best we can . I do have some background
9 experience in this . If you can look to see
whether there are certain referee journals, blue
10 ribbon committees and so forth, whether the
National Academy of Sciences , for example, has
11 done some of these reports or whether they are
done by environmental activists groups which
12 suffer from the same problems that industry groups
do . So can you give us any of guidance, perhaps
13 there is in these materials, things which look to
be less likely to be contaminated or biased by
14 prior interests in the project . I did notice
there was an article in Lampsit (phonetic) which
15 is the British equivalent of the American Medical
Association Journal . That sort of thing or is
16 there anything in that particular list of articles
which could be identified as probably more
17 reliable to the layperson than something from one
side or the other side?
18 MR. LEKAKIS : Board Member Simon, that ' s an
excellent question . I tried to edit out the
19 materials that were patently agenda driven . The
articles that I included in my appendix, there ' s
20 articles in there from the University of North
Carolina at Chapel Hill, University of Hawaii . I
21 believe there ' s also one from -- I 'm not sure if
University of Michigan. Universities in Sweden,
22 Spain, Germany and England. Lots of academic
reports . I tried to focus on the objective
23 materials because the agenda driven materials ,
one, have no value whatsoever and two, are pretty
24 much written in a strident tone that makes them
very hard to deal with . So I wanted to get
25 something that got to the core of the matter.
Those were the materials that I found. So I
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2 wanted also to give the Board something with
propative value rather than specious arguments .
3 For example, if the Board is interested in a
contradictory appraisers report to supplement the
4 articles and reports that I have in the materials
that I provided you about appraisals where
5 property values go down 40% in certain
neighborhoods , I ' d be happy to try to get that for
6 you .
BOARD MEMBER WEISMAN : I have a comment . I
7 have a number of concerns as a public official
about making appropriate decisions on behalf of
8 the community that address two things . One is the
clear and imperative need that our whole North
9 Fork has for first responder communication .
Effective, up-to-date, life safety communication .
10 I believe we can separate, I understand, which is
why I asked for documents rather than anecdotal
11 evidence of dependence on cell phones relative to
first responders 911 calls . I ' m an academic and I
12 understand research . I have been gathering myself
and doing my own research on this because we have
13 increasing demands, understandably, from the Point
all the way to Laurel and we ' ll have continuous
14 demands for both emergency equipment update and
wireless communication. Our community is dependent
15 upon the use of cell phones . It ' s frustrating when
you hit a dead zone and we all know that but there
16 are these other concerns that need to be addressed
as well . It ' s because of that that I ' ve also been
17 proactive in attempting to find experts . I 'm no
expert . I have a file myself that thick and I
18 intend to read every article you ' ve submitted as
well as every piece of evidence that Cingular
19 submits . But bear in mind that interpretation
requires a certain level of expertise as well . so
20 in part, this Board has to count upon the
testimony of experts as well as our own ability to
21 interpret expert ' s research documents . So the
Board has been examining findings independent of
22 experts expertise and I believe that our Chairman
will at the appropriate time address that because
23 we have both individual applications on a one on
one basis which then have to be evaluated. Then we
24 also have the big picture which is as each one
comes in, one thing separate from another, how do
25 they cascade? How do they overlap? What are the
cumulative consequences of all of these towers
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2 proliferating almost always because of our code
which is to locate on municipal property,
3 frequently on scenic byways . So we have a kind of
cacophony of problems to deal with . To the best of
4 our ability, we want to do right by the community
and face the realities of 21st century technology.
5 So I appreciate very much your information as I do
the presentations made by the experts at Cingular
6 and Mr . Boyd . Just please understand that this
Board is attempting to educate itself and find the
7 expertise that has no particular commitment to any
side, has no vested interest whatsoever other than
8 an interpretation of the most current research
available so that we can guide our decision in a
9 way that ' s completely free of self-interest .
Whether it be the public ' s interest or the fire
10 department ' s interest or the wireless .
MR. LEKAKIS : Please don ' t misunderstand me
11 to say that a cell phone tower isn ' t needed or
that there aren ' t benefits to the community. That
12 is not what I 'm saying . I think the purpose of my
submission and my coming here today is that while
13 a cell phone tower will be useful to the community
in certain respects , to put it in the middle of a
14 populated area -- Mr. Re said that my property is
105 feet . Well, the little square fenced in area
15 is 16 feet wide . His map measures 105 feet to the
far end. So the close end of it is 89 feet from
16 my property. That ' s how I came up with that . I 'm
89 feet away. Cheryl and Joe are 150 feet away.
17 The Cothalis family is 170 feet away of 24 hour,
365 day a week radiation . There ' s a reason why
18 these things are often located on scenic byways .
No one lives right under them all the time . They
19 can be incorporated in a lamp fixture or something
else . So maybe while the cell phone tower could
20 be incorporated into the community or the Town of
Southold or one of the adjoining towns, maybe
21 another site in a less densely populated area that
wouldn ' t engender any of these potential health
22 risks might be more appropriate . That ' s all I 'm
saying . I think it would be . Because if you put
23 it on a highway, the highway ' s property value is
not going to go down. If you put it on a highway,
24 it ' s not going to effect the firefighters ability
to think and give them headaches and God knows
25 what else 5 to 10 years from now. It ' s not going
to cause potentially and God forbid an increase in
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2 miscarriages or brain tumors or all these other
things that it ' s reputed to cause . If you put it
3 in a somewhat more removed area, you get the
benefits to the community without the burdens on
4 the community. That is what myself and the other
neighbors are advocating . There is a way to make
5 everyone happy and we trust that the Board will
make the right decisions to do that .
6 BOARD MEMBER WEISMAN : Well, it ' s why we want
to go to beyond the individual application at the
7 Town Board level to begin to really look at a
comprehensive master plan for the location of cell
8 . tower that will provide for our first responders
needs and the safety of the community and also
9 accomplish what you said. We don ' t want any more
than is necessary but we don ' t want any less than
10 is necessary . Examining an appropriate location
and bringing our code up to date, perhaps changing
11 it, is very, very important and I think we ' re
going to see some movement in that direction on
12 the Town Board level .
MR. LEKAKIS : I also think examining that
13 appropriate location and putting in a place where
the benefits , burden analysis makes the most sense
14 to the Board will enable the Board ' s future
decisions to be much easier as well . When you
15 have Verizon and T-Mobile and whoever else is
going to come in here and you put 7 more cell
16 phone towers in or 20 or 50 or whatever it ' s going
to be, you don ' t have to worry about what effect
17 it ' s going to have on your neighbors . It ' s just
going to be there . It ' s just going to be on the
18 highway and helping everyone . And that would be,
I think preferential .
19 CHAIRMAN DINIZIO: I 'm a little confused
about your term of "highway" . Are you familiar
20 with the area?
MR. LEKAKIS : I 'm sorry. I was a little --
21 she said the word byway so I meant to say byway.
CHAIRMAN DINIZIO: Even byway. This is 100
22 feet away from the byway right now. You ' re
suggesting that we put it on that . That ' s where
23 it ' s going .
MR. LEKAKIS : It ' s going on a, as far as I
24 understand, a pole that ' s near a firehouse that ' s
right next to a residential community.
25 CHAIRMAN DINIZIO : The whole area is
residential ., All the way from Greenport line to
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2 -- the only place that ' s commercial is a little
deli that ' s a little bit further away. That ' s it .
3 MR. LEKAKIS : Your point is well taken but I
think there ' s areas that are somewhat less
4 residential then others where there ' s not houses
every 100 feet away from each other where this
5 phone tower is going to go . And because the
proposed reach of the cell phone tower is so
6 large, moving a cell phone tower half a mile this
way or one mile that way to an area where there ' s
7 fewer people --
CHAIRMAN DINIZIO: Sir, I can ' t allow you to
8 testify to that . You ' re not an expert at all in
that area and quite honestly, we know a little
9 more about that than you do . I suggest that you
try to keep your comments to what you know because
10 you obviously don ' t know the area . You may know
your lot and I know that all those lots behind
11 there, I believe are 2 acre lots or one acre lots .
It ' s the least dense area of East Marion with the
12 exception of a farm. Okay. Now people have to,
when they build towers, have to have permission .
13 We have to have someone willing to let these
towers go where they need to have them go . Moving
14 a tower, this tower in particular, a half mile any
way skews the entire, you ' re going to necessitate
15 the need for another tower . We already lowered the
tower by 20 feet which makes that tower less
16 effective and perhaps calls for need of another
tower in that area at some point in time . So they
17 can flip flop their, so Cingular ' s not on top of
that one on the lower on . And I think that you ' re
18 -- I appreciate all your comments but I think you
went a little over the line by trying to tell us
19 where to place this tower when you quite honestly
don ' t have the expertise to say that . If you ' re
20 saying not in my backyard, that ' s fine because I
understand that . And you ' ve said that a number of
21 times . But the rest of it, sir, I think that
you ' re not an expert that can testify to that
22 extent .
BOARD MEMBER WEISMAN : I agree with that but
23 I also agree that neither are we . We do have
experience with applications but we ' re not experts
24 either . We ' re just making the point that we ' re in
a position of evaluating one site specific
25 application after another without understanding
the full range of how they relate to each other .
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2 It ' s like looking at tree, tree, tree and you
don ' t see the forest . What we really need to
3 understand at the Town Board level is a
comprehensive planning approach . Meanwhile, we
4 have an application before us and your testimony
relative to it ' s very site specific context is
5 very relevant as a property owner . I agree with
Jim that beyond that, we can read all we want to
6 but what we really need is to look at a strategy .
A complete strategy. How high should they be?
7 Where should they go? How many do we need? Those
are other issues that are very critical to this
8 community and it ' s well being. So right now we
are addressing one application but I think you ' ve
9 raised important points and I don ' t think anyone
would disagree . I don ' t think that the fire
10 department would disagree with that . You really
need to understand -- they have to communicate
11 with each other from district to district . So
there ' s a lot of issues here .
12 CHAIRMAN DINIZIO : You ' re putting two
different technologies in the same thing.
13 BOARD MEMBER WEISMAN : I would like to
separate those needs because I think they need to
14 by analyzed that way.
CHAIRMAN DINIZIO: You can ' t make a statement
15 that the fire department needs to have a cellular
phone . That ' s not the point . Their radio is not
16 the subject of this .
BOARD MEMBER WEISMAN : In simply saying in a
17 comprehensive plan of critical importance to this
community is the ability for the firefighters, at
18 least, to talk to each other . That ' s one kind of
communication. Wireless has a public utility is
19 another kind of communication.
CHAIRMAN DINIZIO: With that said, do you
20 have anything else to add to this thing?
MR. LEKAKIS : That ' s it, Mr . Chairman . I just
21 want to thank the Board very much for giving me a
very generous amount of time to speak and
22 listening to my points . I know that you
particularly and all the Board members have
23 listened to my points very intently and I really
appreciate the attention that you ' re giving to
24 this matter .
CHAIRMAN DINIZIO: I want to thank you very
25 much all the work you did.
BOARD ASSISTANT KOWALSKI : Would you like to
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2 look at the maps in the file? I know you called
yesterday.
3 MR. LEKAKIS : We got stuck in traffic
unfortunately. It ' s okay, thank you.
4 CHAIRMAN DINIZIO : If you need copies , let us
know .
5 MR. LEKAKIS : Thank you.
CHAIRMAN DINIZIO: Do you want to say
6 anything?
MR. RE : If I could. I have nothing but the
7 utmost respect for the Board and I know the Board
wants to do the right thing for the community, but
8 I think the focus of the hearing seems to have
shifted to the location of the pole and that
9 already was reviewed, approved, building permit
issued and our application is not the type of
10 application that requires that type of study in
that we ' re proposing to put the antennas in an
11 existing pole which could have no visual impact on
the community at all . So I think this application
12 needs to be separated from the generic new tower
application that may or may not come in the
13 future . This is an application to go inside an
existing approved pole that will be going up
14 beginning next week. With respect to the health
effects, again, I respect Mr . Chairman, your
15 desire to allow to community to express their
concerns about that issue and I think it ' s a good
16 thing . However, by law the Board is not supposed
to engage in a study of that issue . If the Town
17 or residents have concerns about the Federal
standard, they should call their congressman,
18 address it on a Federal level because it ' s not a
local issue, it ' s a Federal issue .
19 BOARD MEMBER SIMON: Excuse me . As I
understand the Federal law which preempts local
20 law is the law sensibly says that local laws
cannot pass laws that are more stringent then the
21 Federal law.
MR. RE : Right .
22 BOARD MEMBER SIMON : As I hear you talking,
this suggests that non-expert citizens shouldn ' t
23 really be participating in deciding these issues .
And if you ' re saying that, I think you ' re
24 mistaken .
MR. RE : That ' s not my intent . My intent is
25 to say that the Board should not own engage in
it ' s own study based on materials that may be
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 presented by others as to whether the Federal
standard is out of date .
3 BOARD MEMBER SIMON : We ' re not talking about
the Federal standard. We ' re talking about a local
4 decision and we ' re getting input from anyone in
the community and their representative who want to
5 do this . We ' re not engaging in a study, we ' re
holding a hearing. I 'm sure you wouldn ' t say that
6 we don ' t have a right to hold a hearing and hear
the opinions and facts from people all over the
7 place . Surely Federal law doesn ' t prohibit that .
MR. RE : No, it doesn ' t . I think you and I
8 agree . I think what I meant to say and perhaps I
didn ' t express it clearly is that you certainly
9 have a right to conduct a public hearing, the
Chairman has stated that he would like to hear the
10 concerns of the public . My objection would be if
the Board were to intend to conduct it ' s own study
11 to see if the Federal standard is correct because
it ' s the Federal standard. I think reading
12 studies of the health effects of radio frequency
emissions by various agencies is not relevant to
13 the application because we ' ve shown that we comply
with the Federal standard . Mr . Cornacchia came up
14 and whispered in my ear, can I get back up there?
I said, no . We can be here all day. He could
15 address this at great length . He is the expert and
that ' s not really the issue . The issue is whether
16 we comply with the standards and we do many times
over . Just for anecdotal notation, for instance,
17 the Cold Spring Laboratories, which is one of the
foremost scientific campuses in the United States
18 where they have Nobel Prize winners who studied
cancer . They have a cell tower right on their
19 campus . Right outside the window of Dr . Watson .
That sort of says something to me . Cell antennas
20 are located on just about every hospital in Nassau
and Suffolk Counties . So the people who know
21 these things are not concerned. I 'm starting to
contradict my own statement before that we
22 shouldn ' t get into those issues since the Federal
government has already determined it . But I
23 thought I would just mention that .
CHAIRMAN DINIZIO: I understand where you ' re
24 coming from. I know you know the standards . I
worked in the industry myself. But we do have
25 citizens that would like to address that subject .
Now I understand and from my part, no . I believe
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2 that if there ' s a Federal standard, they set the
standard. We have to comply to it . I think no
3 one on this Board will dispute that . That ' s not
to say that a person who ' s going to be looking at
4 a tower that ' s on 24 hours a day doesn ' t have a
right to come up to us and have that discussion
5 and listen to your explanation which is what I 'm
trying to draw out of you. When you defend your
6 position certainly, they get an explanation . One
that I could not give them. Quite honestly, I
7 wouldn ' t go near the FCC . I couldn ' t call them and
get an explanation because I wouldn ' t know how to
8 ask them the questions . We kind of leave it up to
you to help us with what your rights are . You
9 tell us what your rights are . Certainly we can
check to see if that ' s your right . If you don ' t
10 make the statement, we don ' t hear the statement, I
don ' t understand. That ' s what we get from our
11 neighbors .
MR. RE : I can appreciate that .
12 BOARD MEMBER WEISMAN : I do want to make just
one brief comment which is your absolutely right,
13 the pole has already been approved. It has been
approved for first responders equipment . We went
14 through all kinds of lengthy analysis and
discussion. We did our very best to try to
15 understand the expert testimony that was provided
to us . In this particular application, what would
16 be very beneficial would be to have our own expert
corroborate your expertise, your experts
17 conclusions . In other words , relative to
Cingular ' s application, you provided very specific
18 testimony from a range of different experts about
the potential impact or lack thereof and that ' s as
19 it should be . But you can understand that when an
applicant -- in any court of law this is done,
20 when you have experts testify and you have a
plaintiff and a defendant and they both have their
21 own expert and you try to figure out who ' s saying
what . Experts are clearly going to attempt to
22 present a strong argument in favor of the
applicant . That ' s their job . So I believe to
23 balance that, we need to have testimony from an
independent individual that can corroborate your
24 expert or disagree with them.
MR. RE : I 'm a little puzzled by that
25 because, again, I would understand that in a
typical application for a new monopole but here
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2 it ' s almost beyond doubt that the visual impact of
this site will be negligible because the antennas
3 will be inside .
BOARD MEMBER SIMON : That ' s not the only
4 issue . Safety is the issue then it does make a
difference whether it ' s just being for first
5 responder or it ' s being used for a whole range of
cell phone companies . The order of magnitude
6 differs in the significance of it . That ' s what the
issue is .
7 MR. RE : With respect to that, the
telecommunications act also has a number of other
8 provisions . The purpose of the telecommunication
act is to encourage competition and to provide
9 universal coverage throughout the United States .
Whether the cell phone use is of importance to
10 911, it is . I think that ' s without a doubt . But
that ' s not why we ' re here . We ' re here because we
11 have insufficient coverage . If we are proposing a
site that will have no visual impact and will
12 eliminate the service gap and it complies with FCC
standards, it seems to me that we comply with not
13 only all of the provisions of the Southold Town
code but all of the case law that is come down
14 over the past two decades regarding cell phone
sites . It ' s probably the best of all worlds . It ' s
15 invisible , It eliminates the gap and it complies
with the FCC standard. So that this site is
16 probably the best application, except for the
Orient Congregational Church which was very
17 similar, it ' s probably the best application that ' s
been brought before the Board because it has so
18 little impact across the board.
BOARD MEMBER SIMON : One thing I do have to
19 say . Federal standards that declare that some
particular food is safe is not the same as
20 requiring everybody to eat that food or to buy
that food. The issue is not whether the Federal
21 government standard says this is okay but whether
the community and the government of the community
22 is going to empower the person who is convinced on
good ground to then impose this on everybody here
23 whether they want it or not . These are deep
questions that have to do with individual
24 self-responsibility and choice . We ' re not
suggesting that anyone is going to show that the
25 Federal standards are inadequate . The question is
whether the citizens have an obligation to accept
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2 that whether they agree with it or not or move
out .
3 MR. RE : I respectfully disagree . I think
that the Federal standard says that a local body
4 cannot deny an application based on emissions .
BOARD MEMBER SIMON : So we wouldn ' t even need
5 to have this hearing. If you ' re right, there ' s no
need to have this hearing at all .
6 MR. RE : I disagree with that also because I
think there are a number of issues that you can
7 get into; aesthetics, property values, design,
height and all of those issues . In this case,
8 we ' re going within the pole at the given height .
Aesthetics there ' s going to be no visual impact .
9 BOARD MEMBER SIMON : If those were the only
issues, your argument would be absolutely right .
10 What I hear from people in the community is that
rightly or wrongly, the safety issues are the ones
11 that many, many people are concerned about . If
you ' re right, we have no business being worried
12 about the safety issues the FCC has assured us
that it ' s safe . Maybe they ' re right . I 'm concerned
13 with the citizens willingness to disagree . So
many issues . It ' s like fluoride in the drinking
14 water and I happen to be on your side on this
particular issue . But I do respect people who say
15 I do not want to drink water that has fluoride in
it because I don ' t care how many studies there
16 are, I don ' t want to be forced to drink it . So
they buy bottled water .
17 MR. RE : Well, I think you can understand if
the Federal law were not written that way, no
18 matter where we go, there will always be a
neighbor who says I 'm concerned about the
19 emissions and I think the Federal government
addressed that by saying local government, that ' s
20 not something you are to address . You can address
the other issues .
21 BOARD MEMBER SIMON : So people have to move
away. What choice does the individual citizen
22 have?
CHAIRMAN DINIZIO : Michael? That ' s kind of a
23 philosophical thing . I understand what you ' re
trying to say. I think that we need to gather our
24 information and we ' re going to ask some questions
after this of you and we ' ll see where it goes from
25 there . We ' re a long way from making a decision on
this . Mr. and Mrs . Bondarchuk, would you like to
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2 say something on this?
MS . BONDARCHUK: Thank you. I just wanted to
3 say again, thank you for addressing the issue of
the community safety.
4 BOARD ASSISTANT KOWALSKI : Can you state your
name?
5 MS . BONDARCHUK: I 'm sorry. Cheryl
Bondarchuk. I reside at 350 Oak Court, East
6 Marion . We ' re the adjoining property next to Mr .
Lekakis . Regarding property value, I think my
7 property value would already go down . Knowing
that there ' s a cell tower there, I would not buy
8 the property. So right there, there ' s a decrease
in property value in my mind and I think as tax
9 payers and as citizens of the community, we have a
right to feel safe in our own homes . I do not feel
10 safe with the proposition of putting a cell
communication antenna in a cell tower next door . I
11 have no problem with the fire department using it
to communicate with their fire department
12 personnel . That is indeed a service to the
community but a commercial company coming in to
13 put a cell phone in just to make more money at the
expense of the health of the community members I
14 think is a hard call to make . We have a
responsibility to our community members and our
15 future community members meaning our children and
our grandchildren. I think that there is a
16 possibility, a very high probability of harm to
come from this constant radio frequency. Thank
17 you very much .
CHAIRMAN DINIZIO: Sir, do you have anything
18 to say?
MR. HUGHES : Yes I 'm Joe Hughes . I reside at
19 350 Oak Court, East Marion. As far as the trees
go, you have 7 foot of trees and you have 113 foot
20 of tower up there . That ' s not blocking it . You ' re
still going to see it . As far 'as I understand it,
21 it was already approved for Cingular and for the
fire department .
22 CHAIRMAN DINIZIO: Just the fire department .
MR. HUGHES : You ' re talking emissions , it ' s
23 things I don ' t know about . I just don ' t want my
kids to pay the price of something they can ' t
24 prove and we can ' t prove .
CHAIRMAN DINIZIO : In a nutshell, sir, what
25 the other side is saying is that the Federal
government has looked at this . They have mandated
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2 that cell companies have to live up to a certain
franchised agreement . They have to give coverage
3 to a certain degree of normalcy within their
coverage area . So that means they have to go out
4 and find sites . Then the government said the
emissions from these cell sites are not harmful to
5 the general population. Now we can ' t question
that . That ' s not the subject of this .
6 MR. HUGHES : In certain areas , right?
CHAIRMAN DINIZIO: Right .
7 MR. HUGHES : What about Bud Lite and Long
Beach?
8 CHAIRMAN DINIZIO: Say that again, sir .
MR. HUSSEIN : Bud Lite and Long Beach . That ' s
9 already State property.
CHAIRMAN DINIZIO: But that ' s not -- we can ' t
10 force the State to put a tower on their land.
MR. HUSSEIN : Doesn ' t that go to the Federal
11 level or no?
CHAIRMAN DINIZIO: You want to hire a lawyer
12 to figure all that out, you ' re more than welcome
to . What we ' ve been presented with here is what ' s
13 called colocation. Which is if there ' s an existing
tower, that they must attempt to locate on that
14 tower as opposed to building another tower in the
area . First and foremost, we want to reduce the
15 number of towers . There ' s a couple ways of doing
that . One way is to build real high towers so
16 you don ' t need so many. Another way is to build
lower towers but you need a few more . In any case,
17 if one exists, the Federal government wants them
to go on there . And they ' re telling the
18 municipalities that we must consider that . We
don ' t have a lot to say once that tower exists as
19 to whether or not they can go on it . But we can
ask questions like your health question and try to
20 get answers with respect to trying to alleviate
your concerns but we can ' t deny it because .
21 MR. HUGHES : That would be my 6 year old and
my 8 year old.
22 CHAIRMAN DINIZIO : I personally don ' t believe
it ' s going effect them. I ' ve worked in the
23 industry for a number of years . I ' ve lived in
Greenport which has had the big tower . I ' ve lived
24 underneath that all my life . I ' ve aligned
microwave dishes , FNL dishes . I ' ve done
25 everything . That ' s not to say that when I 'm 70
years old, I 'm not loaded with cancer but I don ' t
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2 know what to blame that on . I have the utmost
faith and confidence in what they ' re proposing to
3 do and it ' s not that I let you folks speak. I
encourage you to speak. I 'm just hoping that the
4 conversation that you hear here alleviates some of
that anticipation that you ' re going to have . If I
5 saw a cell phone tower, I don ' t know that I would
want to buy a house . I 'm not an expert in that .
6 We heard the expert and at the end of this
hearing, we ' re probably going to have our own
7 expert, an independent person who ' s going to
digest all of this information that we heard in
8 testimony and give us his opinion independently.
He ' s probably going to be a person that works in
9 the industry . That has confidence in the emissions
of cell towers and that they won ' t effect you . I
10 don ' t know how you can find anybody else that ' s
going to give you an expert opinion that doesn ' t
11 work in the industry.
MS . BONDARCHUK: It ' s not the current studies
12 that are of upmost concern. It ' s what ' s going to
happen five years from now, ten years from now,
13 twenty years from now . I work in the radiation
field. I 'm a radiologic technologist and I do know
14 that years ago radiation was considered safe . You
could work around radiation and there were no
15 detrimental effects from the low levels of
radiation that we as x-ray workers get . They' re
16 finding out that those studies are beyond the
scope that they had before . They ' re finding out
17 that there are harmful things that have been
happening to people, biologically, from these low
18 levels of radiation . Low levels that were
considered to be safe . Things that we ' ve worked
19 around for years and years . Can we say the same
for radio frequency coming from cell towers? They
20 say that it ' s acceptable now . Acceptable and safe
are two different things .
21 CHAIRMAN DINIZIO : I can say this to you .
Radio frequency has been around as long as x-rays .
22 MS . BONDARCHUK: I know.
CHAIRMAN DINIZIO : Certainly, the power to
23 produce a radio frequency is nowhere near what it
takes to throw an atom threw a body. It is a
24 degree of amplitude . There is that .
MS . BONDARCHUK: The FCC itself, years ago
25 where they had the cell phones, the antennas were
too short on the cell phones themselves and they
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2 had to lengthen the antennas on the cell phones
because of brain tumors .
3 CHAIRMAN DINIZIO : Again, that ' s debatable
too . I 'm hoping what you hear alleviates your
4 fear . I think that really we ' re kind of hamstrung
but we ' re going to do the best we can to help you .
5 I think when you came before, you were concerned
about the fire department . The moment I said, the
6 key to mike . How often does the key to mike? An
hour a year . We bought up the constant . We ' re
7 going to listen to that . I don ' t envy you.
BOARD MEMBER SIMON : I can say as somewhat
8 more sympathetic for your point of view but being
more trusting of the best science there is on
9 this . I 'm inclined to do so . I think what
everyone has the right to is to have whatever is
10 decided be made consistent with the best science
there is at that time . The horrors of past, the
11 x-rays and pleuroscopes and so forth, they were
driven by interests which weren ' t interested in
12 bedding this before the best science there was .
The best we could hope for is that we get the best
13 information from the least bias sources . We can ' t
get perfection . But we can be less imperfect than
14 other sources might be .
MS . BONDARCHUK: Thank you very much.
15 MR. HUGHES : Thank you .
CHAIRMAN DINIZIO: Young lady, do you have
16 something? Can you come up to the microphone,
please .
17 MISS . COTHALIS : I disagree . My name is
Aregeroula Cothalis . I think we shouldn ' t because
18 soon, as you know, New York City used to be royal
just like Greenport, so if we put all these wires ,
19 then soon they ' ll be more and more and more and
then they won ' t have room for me and my sister to
20 play. There won ' t be room for people and their
families to camp or hang out, look under the stars
21 because of the light pollution . The light will
start blocking the stars and soon it will turn
22 into New York City. Then there will be all these
buildings . People will start moving in just like
23 New York City. Now there are tons of people
there . If we put up these wires, a lot of people
24 will come and they might fall down on someone ' s
house and create a fire . I think we shouldn ' t do
25 it because then there will be so many people, we
can ' t even see the stars anymore .
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2 CHAIRMAN DINIZIO: Thank you very much. That
was heartfelt .
3 MR. RE : That sort of --
CHAIRMAN DINIZIO: What do you have to say to
4 that?
MR. RE : Just very short because you ' ve been
5 very patient . There was a comment about the 7 foot
trees not blocking the poles . They ' re not intended
6 to obviously. They ' re intended to shield our
addition to this site which is the cabinets . With
7 respect to the health concerns, one last item, Mr .
Cornacchia whispered in my ear that these
8 frequencies have been used for 60 years . It ' s not
like they ' re suddenly something more on the
9 horizon . If you were to turn on the radio in this
room, you would pick up radio frequency from
10 dozens of radio stations . If you turned on a
television, you would have radio frequency from
11 television stations . The only thing that the
addition of the antennas inside the pole would do
12 is enable one additional station to be received,
which would be the cellular telephone station . So
13 it ' s not something new and mysterious . It ' s
something that ' s been around for a very long time .
14 CHAIRMAN DINIZIO : Certainly, you ' ll need the
towers for the small transmitters that you ' re
15 trying to pick up too . They can only transmit so
far .
16 MR. RE : And if we can ' t go in this pole,
then we ' d have to come back here with an
17 application to erect a pole and then you would be
asking me why didn ' t you ask to collocate and I
18 would say I did. We ' re doing what is not only
Southold but across the country just about every
19 Town and Village has a code that encourages to do
exactly what we ' re applying for here .
20 CHAIRMAN DINIZIO : With that said, I know
I ' ve been eluding to this the whole time so we ' ll
21 get to it right now. Anyone else have any more
questions? We ' ll probably have another hearing on
22 this . Are you familiar with our law 280-70E-6?
MR. RE : Yes .
23 CHAIRMAN DINIZIO: Allows us to ask you to
hire our own consultant based on the amount of
24 costs that you reported to the Building Inspector
when you need-- . In any case, I can give you two
25 options . One is you could go away and come back
next month and I ' ll give you the opportunity to
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1 ZONING BOARD OF APPEALS - JUNE ' 28 , 2007
2 tell us why you don ' t think this applies to you
and we could hear that . Or I would like to see if
3 we could go forward with finding somebody who can
give us opinions specifically on the ADI, the area
4 of dominant influence, for that particular tower .
Whether you need to speak to the reason has to be
5 . right there? Why you couldn ' t cover it from
Greenport? Why it can ' t be covered from Orient?
6 Someone to testify besides your testimony that
that is good or there are alternatives . That ' s
7 what I ' m looking for and I ' m thinking the rest of
the Board will probably feel more comfortable
8 hearing that information .
MR. RE : My question would be, if we were to
9 collocate in Greenport -- we ' re already in
Greenport -- but assuming we aren ' t, we would be
10 affixing antennas to a tower just like we ' re
applying for here except that they would be
11 exposed. So it seems to me that while I
understand traditionally why a board would want to
12 know that issue, in this case since we ' re going to
have no visual impact, it would, from my vantage
13 point, be a tremendous waste of money because
there ' s going to be no visual impact from our
14 application. We already have sites to the east
and west . We have a site in Greenport and we have
15 a site at the Orient fire district .
CHAIRMAN DINIZIO : I agree with you there .
16 I 'm wondering if this site is necessary. I would
like to have someone besides yourself or your
17 people tell us that .
BOARD MEMBER WEISMAN : I think this came up
18 in a very compelling way when we were examining
testimony for the pole itself . At that time, we
19 heard tons of expert opinion. All of it coming
from the applicant . And at that point, we began
20 to realize that we were doing our best to
interpret what was an opinion that was from the
21 applicant and that we were in no position to be
that sophisticated about it, try as we might and
22 we certainly did. We began to realize that not
just with that application but with all future
23 applications , it would be prudent of us to have
available as we do with Soil and Water, for
24 example, with applications that look at
environmental impacts, to have a radio frequency
25 engineer that we could, as a Board, use when
necessary on applications or towers and
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 colocations . I think that ' s what we ' re really
talking about . The Board had decided that going
3 forth in order to reassure the community and
ourselves that we are doing our fiduciary
4 responsibility to observing that for the community
by making an informed decision that is balanced by
5 experts , expertise from the applicant but also
independent that we can call upon. I think that ' s
6 what Jim is saying . I ' ve done some research and
found a couple of RF engineers that have no
7 interest in the community that can help guide us
through this process of interpreting the testimony
8 that we ' ve heard and the evidence that ' s been put
fort in writing .
9 CHAIRMAN DINIZIO: The code does allow us to
do that . That ' s the whole thing here . Not only
10 did we hear your expert testimony but we heard
testimony from other people . We ' re looking at an
11 inch and a half document here and one way or the
other, some people on this Board may feel like
12 they can ' t make a decision based just on that .
That someone needs to analyze the information we
13 received today. You know, I 'm willing to give it
to the next hearing if you can give us something
14 that says you don ' t feel like you need to provide
that . I certainly understand it and we would have
15 to take it from there .
BOARD MEMBER SIMON : The statute provides
16 that the applicant --
CHAIRMAN DINIZIO: I think we can require it .
17 If this gentleman looks at this law, he may find
something in that law that says that he ' s not
18 necessarily in this instance required to do it . I
would like to give him the opportunity to present
19 that to us in a cogent argument . Not at a quarter
to five when spaghetti is on in forty-five
20 minutes .
MR. RE : My thinking is and I respect your
21 offer to allow me to review the code is that
unlike a typical application, we ' re not proposing
22 to erect a monopole and so the question is to
whether the testimony regarding need becomes
23 almost, not quite, but almost irrelevant since
it ' s going to have no effect on the surrounding
24 areas from a visual standpoint, it ' s an issue
that ' s almost irrelevant .
25 BOARD MEMBER WEISMAN : You keep referring to
visual standpoint . That is only one aspect of the
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 balancing test that we have to evaluate . Visual
impact on character of the neighborhood. The
3 visual impact is done already. It ' s a pole . It ' s
not your colocation . You ' re absolutely right,
4 there is no additional visual impact .
MR. RE : As a public utility we ' re not judged
5 by a normal zoning standard of the balancing .
What we have to prove is that the proposal is the
6 least obtrusive way to provide service to an area .
CHAIRMAN DINIZIO: You do have to prove that .
7 MR. RE : But I can ' t imagine any less
obtrusive way to provide service to an area .
8 BOARD MEMBER SIMON : That ' s where the safety
thing comes in . If safety is not an issue, then
9 it ' s that simple .
CHAIRMAN DINIZIO: I think to Federal
10 government not withstanding, I still believe that,
we have to be convinced that it ' s necessary. I 'm
11 not saying it is now. I haven ' t made my mind up
one way or the other and I 'm giving you the
12 opportunity to tell me why our code doesn ' t say we
can ' t do that . If we had someone else telling us
13 that it was necessary, certainly that would build
our record. It would be nice to have in our file
14 to say look we had more than just you guys come
in. We had a guy come from West Virginia .
15 MR. RE : Why don ' t I do this then . Why don ' t
I consult with my client tomorrow and then get
16 back to you.
BOARD MEMBER SIMON : It ' s not whether it ' s
17 necessary. It ' s a matter of a cost and/or risk
benefit analysis .
18 MR. RE : It really isn ' t, with all due
respect .
19 CHAIRMAN DINIZIO: No . We can ' t do that . Our
laws and Federal law is very specific . They ' re
20 telling us, they ' re coming to us and saying okay,
it ' s necessary that we locate here . We found a
21 tower . I think the only question that we have is
okay, we need to know that it ' s necessary because
22 that ' s what you ' re saying . If beyond that -- well
the impact on the community is the tower that we
23 granted before .
BOARD MEMBER WEISMAN : That ' s one impact and
24 that was decided based entirely upon testimony and
expertise presented by the applicant .
25 MR. RE : But Ms . Weisman, I ' d like to hear
what the other impacts are then.
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO : You can ' t go safety.
BOARD MEMBER WEISMAN : You certainly can.
3 CHAIRMAN DINIZIO : No because the Federal
government says it ' s safe .
4 BOARD MEMBER SIMON : The Federal government
just says that the Town cannot pass a law. It
5 doesn ' t say that the Town cannot --
CHAIRMAN DINIZIO: We can ' t say to the
6 Federal government that it ' s not safe .
MR. RE : What is actually says is that the
7 ' local government is preempted from making a
decision based on the emissions from a site so
8 long as we comply with the standards .
BOARD MEMBER SIMON : Is the government
9 precluded from turning something down on the
grounds that let ' s say a majority of the citizens
10 consider it to be unsafe .
MR. RE : Yes . As a matter of fact, that ' s a
11 correct statement .
BOARD MEMBER SIMON : The law is a lot
12 stronger than I thought it was .
MR. RE : Yes , it is . You cannot deny an
13 application based on emissions so long as we
present evidence that it complies with the
14 standard.
BOARD MEMBER SIMON : So that would apply to
15 nuclear power plants, for example?
MR. RE : No, no, no . It doesn ' t . It applies
16 to personal wireless service facilities .
CHAIRMAN DINIZIO : I have one more thing I ' d
17 like to know if you can do for us . It may be
helpful . Do you have an inventory of Cingular
18 wireless sites in Southold Town?
MR. RE : Yes . We submitted it to the Board
19 , as part of the application.
CHAIRMAN DINIZIO : You know that map that you
20 gave us, I have a map in the back here, can you
draw circles of the approximate area of dominant
21 influence .
BOARD MEMBER WEISMAN: Coverage .
22 CHAIRMAN DINIZIO: They don ' t have to be
accurate but -- would that be a problem for your
23 company. I know there ' s proprietary stuff that
must go on and people don ' t want to share their
24 information .
MR. RE : I ' ll check with my client on that
25 too . I don ' t know if that ' s relevant to this
specific application. But in order to comply --
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 CHAIRMAN DINIZIO: Because I 'm looking at,
you know, you ' re saying you got one in Northville,
3 one in Mattituck. I know that they ' re farther away
than East Marion and Orient are or even East
4 Marion and Greenport . How ' s your coverage there?
Is it better? Good? Not so good? Need more towers?
5 MR. RE : No . But it ' s not as good -- if you
were to see the continuum, there are gaps in
6 between.
CHAIRMAN DINIZIO: And that ' s what I 'm
7 looking for . There ' s got to be some kind of an
average of distance between towers . I understand
8 the height has a lot to do with it . Certainly
topography does but certainly just a circle around
9 -- this 100 foot site, you have a 35 foot site,
Fisher ' s Island. Maybe even Fisher ' s Island might
10 come in to play in this .
MR. RE : We have a site on Fisher ' s Island.
11 CHAIRMAN DINIZIO : Is that our side of the
Island or the other side?
12 MR. RE : I appeared before this Board. It ' s a
site on Fisher ' s Island.
13 CHAIRMAN DINIZIO : Okay. And then you know
you ' ve got Shelter Island.
14 MR. RE : We have a site on Shelter Island.
CHAIRMAN DINIZIO: It ' s 150 feet? You can ' t
15 even see it .
MR. RE : It ' s over by the dump .
16 CHAIRMAN DINIZIO: Can you ask -- as your
client certainly because I understand that from a
17 business standpoint that may not be good. But it
may help in our deliberation to realize the
18 limitations of what a tower can do .
BOARD MEMBER WEISMAN : Actually Jim, I
19 believe I already have that map . But I ' d like to
compare what I have with what they present . I ' ll
20 show you the map I have .
CHAIRMAN DINIZIO: I ' ve seen one already.
21 BOARD MEMBER WEISMAN : But that ' s in
conjuction with what an outside RF engineer can
22 corroborate also . They can do that for us . They
can say they really need it because there are big
23 gaps . No matter what you do, there ' s going to be
some gap in service someplace . It ' s inevitable .
24 You ' re going to -- we live in the can you hear me
now? It ' s going to happen . In my house, I live
25 in Southold near the Sound and there was no way I
was going to use my -- I ' ve changed carriers three
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2 times and it doesn ' t matter .
CHAIRMAN DINIZIO : Let me tell you something
3 Leslie, I live, I can look at this water tower in
Greenport and still not have Cingular service .
4 BOARD MEMBER WEISMAN : That ' s what I 'm
trying to so . There ' s going to be gaps . So in
5 some ways those maps are helpful but they ' re also
somewhat limited. You ' re never going to get 1000
6 coverage everywhere by everybody. There ' s going to
be interference and it can vary from time to time
7 depending on what ' s there to interfere with the
frequency .
8 MR. RE : That ' s correct .
BOARD MEMBER WEISMAN : I would feel more
9 confident in my decision if I had additional
guidance that was from an unaffected party to
10 simply corroborate your presentation and to allow
us to assure the community that this has --
11 there ' s nothing for them to be concerned about .
Only be grateful that there ' s better cell phone
12 coverage . We already have done the emergency
equipment and communications . This was inevitable .
13 We knew this was coming. I just want to make sure
from here on when we have individual applications,
14 we go forth with a kind of balance approach in
evaluating what we ' re doing and a higher level
15 because this is complicated stuff and you all
remember how many hours and hours and hours of
16 testimony we went through on that tower and in
Orient . There ' s one coming up out at the Point
17 that ' s going to be a whole other thing. It ' s not
near a residential area but it ' s near other
18 resources . They ' re going to happen one by one and
we better put into place a policy that makes this
19 more efficient for the applicant ' s sake and for
the community ' s sake . Certainly we want to, at the
20 same time, independent of individual applications
look at the total picture which is, as I said, I
21 think where the Town Board is going with this .
CHAIRMAN DINIZIO: Do you feel like you could
22 answer us in a letter?
MR. RE : Yes, I could.
23 CHAIRMAN DINIZIO: About my map thing, I have
a map in the back here . If I give it to you, will
24 you just, if you can --
MR. RE : I ' ll talk to my client and if they
25 say yet, we ' ll provide you with the map you
requested.
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2 CHAIRMAN DINIZIO : That would be wonderful .
Just your towers . Not anyone else ' s . That would be
3 just helpful . I know there are other towers .
When can we expect that?
4 MR. RE : Within ten days .
CHAIRMAN DINIZIO : Within ten days? We ' re
5 going to be meeting on the 12th?
BOARD MEMBER KOWALSKI : We would need to
6 accept the paperwork. Are you closing the
hearing?
7 CHAIRMAN DINIZIO: I don ' t know . That ' s what
I 'm trying to find out . Should we leave it open
8 until then?
BOARD ASSISTANT KOWALSKI : Yes . Let ' s see
9 what we get .
CHAIRMAN DINIZIO: We ' ll evaluate the
10 information and then put it on the agenda?
BOARD ASSISTANT KOWALSKI : It would go
11 underneath a second hearing, it would be on August
2nd in the afternoon.
12 CHAIRMAN DINIZIO: Can we make that decision
on the 12th?
13 BOARD ASSISTANT KOWALSKI : I 'm trying to
think ahead for a date because we can ' t have a
14 hearing on the 12th . Unless you meet over here and
you want to have a special meeting here at 6 : 00
15 o ' clock?
BOARD MEMBER SIMON : If the Board decided we
16 want to go ahead and get an expert then we would
wish we left the hearing open . We don ' t want to
17 have to readvertise the hearing.
CHAIRMAN DINIZIO: That ' s true . So that ' s
18 what I 'm saying about the 12th .
BOARD MEMBER SIMON : You can ' t decide it on
19 the 12th.
CHAIRMAN DINIZIO: We can look at the
20 information.
BOARD ASSISTANT KOWALSKI : Let ' s not even
21 talk about the 12th . Let Mr . Re submit it in
writing . You have until the middle of July to
22 decide whether or not you want to cancel the
hearing or not . You don ' t have to adjourn this to
23 July 12th . You can adjourn it to August 2nd .
MR. RE : There would be no need to renotice?
24 CHAIRMAN DINIZIO : No, if we leave it open,
we ' ll be back here -- what ' s the date exactly?
25 BOARD MEMBER KOWALSKI : It would be August
2nd in the afternoon . I don ' t have that calendar
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2 in front of me but probably around 1 : 30 . Then I
thought if the Board didn ' t want to have a
3 continued hearing, they could do a resolution
closing the hearing at that the time and getting
4 ready to make a decision at that time .
MR. RE : All right . Thank you .
5 CHAIRMAN DINIZIO : Thank you very much .
MR. LEKAKIS : I have a very brief comment .
6 I 'm very encouraged by the Board' s consideration
of an outside expert . However, I would like to
7 make one request . As the Chairman noted, I have no
expertise and there was no expertise presented
8 about this area in the submission that I
presented. Since you ' re considering already
9 hiring a radio frequency expert, I would
respectfully request that the Board also consider
10 hiring an appraiser or a property value expert to
see where the least impactful area for the tower
11 could be .
CHAIRMAN DINIZIO : What would be the reason
12 for that? Now this is a tower that already
exists . The tower is not the subject .
13 BOARD MEMBER WEISMAN : I don ' t think he
understands .
14 MR. LEKAKIS : I understand. The tower is
going to be built for the firehouse and then
15 you ' re going to put the cellular tower in front of
it .
16 BOARD MEMBER WEISMAN : They ' re proposing to
collocate on the tower that ' s already approved.
17 CHAIRMAN DINIZIO: So where is the property
value a problem?
18 MR. LEKAKIS : I wouldn ' t conflate the issues
of visual impact and property value . As Board
19 Member Simon noted, the concept of property value
is one that ' s based partly on human psychology. If
20 people know or think that there ' s a cell phone
tower, let ' s say 90 feet away, or close to where
21 they live all year round, they might not be as
willing to pay as much . Again, you ' re right, I
22 don ' t know the area but there might be some place
in this area where it just wouldn ' t be as close to
23 people . That ' s all I 'm suggesting . If you can get
an expert to help on that analysis .
24 MR. RE : And I would oppose . I can ' t imagine,
first of all, the tower is going to be there with
25 the antennas for the fire department . For someone
to say, that ' s okay -- first of all, they wouldn ' t
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2 see the antennas inside even if they knew, that
would not change it . The Board knows East Marion .
3 A new tower somewhere else would certainly have
more effect visually property value wise than
4 going inside this pole .
CHAIRMAN DINIZIO: I tend to agree with you .
5 I don ' t think that we can even consider that,
sir . That ' s my personal opinion. I don ' t know how
6 the rest of the Board feels . It ' s inside . It ' s
there for that reason . The Federal government is
7 basically telling us we have to allow those things
to collocate . Does it affect property values? I
8 think it certainly does but I just don ' t know that
we can make a decision based on property value .
9 BOARD MEMBER SIMON : One practical issue . It
probably would be very hard to get an expert who
10 would be able to assess whether the property
values would be lowered by the knowledge that
11 within an existing monopole there were cell phones
as opposed to just a tower alone or with no pole .
12 That ' s a very sophisticated, subtle question. It
would cost an enormous amount of money to get
13 somebody to do the research on that . .
BOARD MEMBER WEISMAN : It reminds me of many
14 decisions that we ' ve been faced with applications
where testimony should have gone to the Trustees
15 and wound up incredibly long, setbacks from
wetlands and turtles and things that really should
16 have been a part of that hearing. At this point,
the pole is a done deal frankly. The impact it may
17 or may not have on property values is moot . That
pole is happening . The question of health and
18 safety, there are laws we ' re required to follow
and then there ' s wisdom. Wisdom sometimes flies
19 in the face of the law and we ' ve heard about that .
One day they told you that eggs are horrible for
20 your cholesterol and this next minute a study
comes out and says eat all the eggs you want .
21 This is the nature of ongoing knowledge as it
develops over time . I think the key issue here is
22 making sure that when testimony is presented by
any applicant, that if that testimony is technical
23 and complex, that we as a Board have our own
expert to help us assess the accuracy of the
24 testimony that the applicant presented. That ' s
what we ' re getting down to basically and we ' re
25 trying to do the best job we can in fairness to
the applicant, in fairness to the community to
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2 balance these things . This is one step I think in
that direction . We don ' t want to delay the process
3 unduly and we don ' t want to rush it either because
we want to be sure about what we ' re talking about .
4 We ' re trying to find a way to keep the hearing
open, move as swiftly as possible, cooperate with
5 the applicant to hear what you had to say and read
what you submitted. I think we ' re making great
6 progress in this and we ' ll do it as swiftly as we
can . We ' ll all mark the calendar for the next
7 round.
MR. LEKAKIS : Again, I appreciate the Board ' s
8 deliberations .
MR. BOYD: I would like to say one very short
9 comment on the question of experts and I 'm not
addressing this particular application. From what
10 I hear, I 'm afraid this Board is on a very, very
slippery slope . If you intend to use experts in
11 any cases that involve complex matters, you are
going to potentiate the time that is required to
12 finish an application before the Board and you ' re
going to very greatly increase the cost to any
13 applicant . I wish you would keep that in mind
before you make a determination . I 'm not saying
14 that there are not certain cases that require
those experts but I was afraid from the comments
15 that I just heard that there may be a feeling of
going toward an expert in more and more and more
16 cases .
BOARD MEMBER SIMON : I 'm the one you ' re
17 looking at .
MR. BOYD: I wasn ' t . As a matter of fact, I
18 was looking slightly to your right . If you ' d
like, I ' ll look at you as well .
19 BOARD MEMBER SIMON : Some complex matters we
wouldn ' t want to appeal . Just because they ' re
20 complex doesn ' t mean expert .
MR. BOYD: I understand the words . I don ' t
21 want to get into semantics on this thing but I do
want to caution the Board about making the process
22 that we ' re all involved in more complex and more
expensive .
23 BOARD MEMBER WEISMAN : Until such time as we
have experts that the Town hires to really examine
24 the whole issue on a comprehensive planning basis,
we have to grapple with one application at a time
25 which is really grappling in the dark. How many
times did we hear Mr . Shibel (phonetic) tell us
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 about propagation maps? You were there . You
remember . We really, really need to look at the
3 bigger picture and when that happens, we won ' t
need anymore expertise .
4 CHAIRMAN DINIZIO: I think that maybe you
shouldn ' t try to use this application to start --
5 MR. BOYD : Exactly.
BOARD MEMBER WEISMAN : I 'm not . I 'm trying to
6 reassure Mr . Boyd --
CHAIRMAN DINIZIO: You keep going to this
7 comprehensive blah blah blah. What we should be
doing is verifying the information as they gave
8 it, specifically. It ' s the reason why I waited to
the end of the hearing so that we can concentrate
9 on exactly what they said. I don ' t care about
Southold right now . I care about how this
10 particular cellular company needs to service this
particular area . From there we will all learn,
11 one way or the other we ' ll make our judgment .
Personally, I think that we will probably learn a
12 little more than we need to but you know what, I
have seen in the past us make decisions based on
13 feelings as opposed to actual science . The Orient
tower is a case in point . You lowered a tower 30
14 feet . Now you just necessitated another tower .
Now, the only person that gets punished in that,
15 and this will be the last I ever say, is the fire
department because they still can ' t reach Plum
16 Island. And they ' re required to be able to
communicate . Now I can hear, I heard Board members
17 say, they can just locate on that . They can ' t just
locate on it . So I 'm looking specifically and the
18 reason why we ' re at the end is that we ' re going to
address the questions that they gave us . Then, if
19 we want to do something comprehensive, we ' re not
going to be hiring -- I 'm thinking this is a one
20 month deal with this guy. We can submit into him
the stuff that we have, give him the book if you
21 want to give him the book, I don ' t care . Let him
evaluate it and let him say no, what these people
22 are saying is the truth or no, I dispute this . It
can be done in such or such a way .
23 BOARD MEMBER WEISMAN : Look. Let me just
clarify what I said. I absolutely agree . This is
24 an application before us and we are addressing
this application . I used it as an opportunity
25 just as we did this morning with the whole problem
with demos and having to reconstruct foundations .
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1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 We ' re discussing two different stages of problems .
One is a specific application and that ' s what
3 we ' re to deal with here . We talked about having a
consultant for individual applications . I must
4 use this as an opportunity to say that in order to
avoid having to go through each application with
5 such a fine-tooth comb, if we go to the next
level, and that has nothing to do with you or your
6 application at this point, we ' ll be in a better
position. We won ' t have to say the fire fighters
7 couldn ' t, because we knocked off 30 feet when we
shouldn ' t have . I don ' t know about that because I
8 don ' t know what tower is coming next or where it ' s
going to be located next . The Town has to know
9 that; not the ZBA, the Planning Department has to
know that .
10 MR. RE : But none of those issues are before
the Board on this application.
11 BOARD MEMBER WEISMAN : No, they are not .
You ' re absolutely right . That ' s why I want to
12 make it very clear . The intent is not to encumber
the process to add great expense and time but to
13 make sure that our decisions are well informed.
That ' s all .
14 BOARD ASSISTANT KOWALSKI : I just had one
other though . When we get an answer from: Mr . Re,
15 the next step would be in our Department, maybe
not the Board at a hearing, but our Department
16 will know whether to go the next step or to file
or whether we can prepare the file to be finished.
17 If we go the next step, there will be time
involved to prepare the whole file, also to ask
18 for fees, to collect fees from the applicant which
is covered at 5% amount . We have other steps
19 involved. We may not be able to do that by August
2nd. If that happens -- I 'm thinking down the
20 road.
CHAIRMAN DINIZIO : I know you ' re very
21 concerned about that Linda . Let ' s just take this
one step at a time . I guess my conveyance to you
22 is that -- don ' t think that we ' re trying to
balance the entire Southold Town cellular coverage
23 on your application . Specifically, and I know that
both of these people to my left have made that
24 concern, that we need to know when making these
decisions that we ' re making the right decision .
25 That ' s all we ' re looking for . Making the right
decision here doesn ' t effect any other tower at
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1 ZONING BOARD OF APPEALS - JUNE 28, 2007
2 this point; am I correct?
BOARD MEMBER WEISMAN : Yes .
3 CHAIRMAN DINIZIO: Let ' s adjourn this hearing
-- Michael, do you need to say something?
4 BOARD MEMBER SIMON : Just one thing . Sooner
or later, we ' ll probably need an independent
5 expert . But my understanding is that if we get an
expert, whenever we get it, this time, next time,
6 we will learn somethings so that maybe the next
time we won ' t need the expert . So it may speed up
7 some of the subsequent process . This may not be
the last time you appear before this Board. It
8 could very well be easier the next time if we have
to go through the process . But sooner or later
9 it ' s going to happen, this may or may not be, we
don ' t know yet . This is the right issue were we
10 need an expert . Mr . Boyd has conceded that there
may very well be some issues where it is
11 absolutely necessary and important . We have to
decide if this is it or if it ' ll come later on.
12 There will be a payoff subsequently after . it
happens, I believe .
13 BOARD MEMBER WEISMAN : Quite frankly, it
would have been very helpful to us had we had that
14 expert when we were talking about the tower . This
is an inevitable after the fact . Colocation we
15 knew was coming . I wish we would have had that
when we were talking about the complexities and
16 the height of the tower .
MR. RE : That ' s why and without beating a
17 dead horse, it seems that the next application for
a tower might be a more appropriate time rather
18 then hold up an application that almost everyone
knows complies in every respect with the code and
19 with case law .
CHAIRMAN DINIZIO : Again, I 'm only looking to
20 verify your statements . I know they ' re experts
and I would rely on an expert that was independent
21 to make that decisions for me . Beyond that, it ' s
not anything to do with anything else . So I 'm
22 hoping you can see yourself to perhaps help us in
that respect .
23 MR. RE : Thank you very much.
CHAIRMAN DINIZIO: Anybody else wish to
24 speak? We ' re going to adjourn the hearing
until .August 2nd . I ' ll entertain a motion .
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2 (See minutes for resolution . )
3 (Whereupon, the hearing was concluded at
5 : 45 p .m. )
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1.8 9
1 ZONING BOARD OF APPEALS - JUNE 28 , 2007
2 C E R T I F I C A T I O N
3 I , Erika Nadeau, a Notary Public of the
4 State of New York do hereby certify:
5 THAT the testimony in the within
6 proceeding was held before me at the aforesaid time and
7 place .
8 That the testimony was taken stenographically by
9 me, then transcribed under my supervision, and that the
10 within transcript is a true record of the testimony
11 given .
12 I further certify that I am not related to any
13 of the parties to this action by blood or marriage,
14 that I am not interested directly or indirectly in the
15 matter in controversy, nor am I in the employ of any of
16 the counsel .
17 IN WITNESS WHEREOF, I have hereunto set my
18 hand this day of _ _ 2007 .
19
20 ,.
21 A .L
22 Erika Nadeau
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